0:'united states general accounting office office of the general counsel gao january 2004 principles of federal appropriations law third edition',
1:'volume i as of september 14, 2017, chapters 1, 2, and 3 of the fourth edition of principles of federal',
2:'appropriations law supersede chapters 1 through 4 of the third edition of principles of federal appropriations law. chapters 5 through',
3:'15 of the third edition of principles of federal appropriations law, in conjunction with gao,principles of federal appropriations law: annual',
4:'update to the third edition, remain the most currently available material on the topics discussed therein. all current chapters and',
5:'theannual update to the third edition are available at www.gao.gov/legal/redbook/overview. this volume supersedes the volume i, second edition of the',
6:'principles of federal appropriations law, 1991. the security of this file is set to prevent a situation where linked references',
7:'are appended to the pdf. if this change prevents an acrobat function you need e.g., to extract pages, use the',
8:'the password “redbook” to revise the document security and enable the additional functions. a gao04261sp abbreviations apa administrative procedure act',
9:'blm bureau of land management cda contract disputes act of 1978 ccc commodity credit corporation c.f.r. code of federal regulations',
10:'eaja equal access to justice act eeoc equal employment opportunity commission far federal acquisition regulation fy fiscal year gao government',
11:'accountability office gsa general services administration hud department of housing and urban development irs internal revenue service nrc nuclear regulatory',
12:'commission omb office of management and budget sba small business administration tfm treasury financial manual u.s.c. united states code ura',
13:'uniform relocation assistance and real property acquisition policies act this is a work of the u.s. government and is not',
14:'subject to copyright protection in the united states. it may be reproduced and distributed in its entirety without further permission',
15:'from gao. however, because this work may contain copyrighted images or other material, permission from the copyright holder may be',
16:'necessary if you wish to reproduce this material separately. abbreviations apa administrative procedure act blm bureau of land management cda',
17:'contract disputes act of 1978 ccc commodity credit corporation c.f.r. code of federal regulations eaja equal access to justice act',
18:'eeoc equal employment opportunity commission far federal acquisition regulation fy fiscal year gao government accountability office gsa general services administration',
19:'hud department of housing and urban development irs internal revenue service nrc nuclear regulatory commission omb office of management and',
20:'budget sba small business administration tfm treasury financial manual u.s.c. united states code ura uniform relocation assistance and real property',
21:'acquisition policies act this is a work of the u.s. government and is not subject to copyright protection in the',
22:'united states. it may be reproduced and distributed in its entirety without further permission from gao. however, because this work',
23:'may contain copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce',
24:'this material separately. foreword we are pleased to present the third edition of volume i of principles of federal appropriations',
25:'law, commonly known as the “red book.” our objective in this publication is to present a basic reference work covering',
26:'those areas of law in which the comptroller general renders decisions. this volume and all other volumes of principles are',
27:'available on gao’s web site www.gao.gov under “gao legal products.” our approach in principles is to lay a foundation with',
28:'text discussion, using specific legal authorities to illustrate the principles discussed, their application, and exceptions. these authorities include gao decisions',
29:'and opinions, judicial decisions, statutory provisions, and other relevant sources. we would encourage users to start with at least a',
30:'brief review of chapter 1, which provides a general framework and context for all that follows. chapter 1 includes a',
31:'note regarding citations to gao case law and other relevant gao material and an explanation of those other materials. we',
32:'have tried to be simultaneously basic and detailed—basic so that the publication will be useful as a “teaching manual” and',
33:'guide for the novice or occasional user lawyer and nonlawyer alike and detailed so that it will assist those who',
34:'require a more indepth understanding. the purpose of principles is to describe existing authorities; it should not be regarded as',
35:'an independent source of legal authority. the material in this publication is, of course, subject to changes in statute or',
36:'federal and comptroller general case law. also, it is manifestly impossible to cover in this publication every aspect and nuance',
37:'of federal appropriations law. we have not attempted to include all relevant decisions, and we admit albeit grudgingly that errors',
38:'and omissions probably are inevitable. principles should therefore be used as a general guide and starting point, not as a',
39:'substitute for original legal research. it is also important to emphasize that we have focused our attention on issues and',
40:'principles of governmentwide application. in various instances, agencyspecific legislation may provide authority or restrictions somewhat different from the general rule.',
41:'while we have noted many of these instances for purposes of illustration, a comprehensive cataloguing of such legislation is beyond',
42:'the scope of this publication. thus, failure to note agencyspecific exceptions in a given context does not mean that they',
43:'do not exist. as with the second edition of principles, we are publishing the third edition in a looseleaf format.',
44:'however, it will also be available electronically at www.gao.gov. we plan four volumes with annual updates. page i gao04261sp appropriations',
45:'law—vol. i foreword annual updates will only be published electronically. users should retain copies of their five volumes of the',
46:'second edition until each volume is revised. we will not update volume iii of the second edition, which was last',
47:'revised in november 1994. it deals with functions that were transferred to the executive branch by the general accounting office',
48:'act of 1996 public law 104316, including claims against the united states, debt collection, and payment of judgments against the',
49:'united states. future editions and updates of principles will not include these subjects. volume v, published in april 2002, is',
50:'a comprehensive index and table of authorities covering the entire second edition of principles. it will continue to apply to',
51:'the second edition volumes until they are revised. as each volume of the third edition is issued, it will contain',
52:'its own index. once the third edition is complete, we will publish a new comprehensive index and table of authorities.',
53:'the response to principles has been both gratifying and encouraging since the first edition was published in 1982. we express',
54:'our appreciation to the many persons in all branches of the federal government, as well as nonfederal readers, who have',
55:'offered comments and suggestions. our goal now, as it was in 1982, is to present a document that will serve',
56:'as a helpful reference for a wide range of users. to that end, we again invite comments and suggestions for',
57:'improvement. we thank our readers for their support and hope that this publication continues to serve their needs. anthony gamboa',
58:'general counsel january 2004 page ii gao04261sp appropriations law—vol. i detailed table of contents volume i chapters 1–5 chapter 1',
59:'introduction a. nature of appropriations law . . . . . . . . . . . . . .',
60:'. . . . . . . . . . . 12 b. the congressional “power of the purse” .',
61:'. . . . . . . . . . . . . . 13 c. historical perspective. . .',
62:'. . . . . . . . . . . . . . . . . . . .',
63:'. . . . . . . . . 114 1. evolution of the budget and appropriations process . .',
64:'. . . . . . 114 2. gao’s role in the process . . . . . . .',
65:'. . . . . . . . . . . . . . . . . . . .',
66:'. . . . .121 d. “life cycle” of an appropriation . . . . . . . . .',
67:'. . . . . . . . . . . . 124 1. executive budget formulation and transmittal .',
68:'. . . . . . . . . . . . 125 2. congressional action . . . .',
69:'. . . . . . . . . . . . . . . . . . . .',
70:'. . . . . . . . . . . .126 a.summary of congressional process . . . .',
71:'. . . . . . . . . . . . . . . . .126 b.points of order',
72:'. . . . . . . . . . . . . . . . . . . .',
73:'. . . . . . . . . . . . . . . . . . .129 3.',
74:'budget execution and control . . . . . . . . . . . . . . . .',
75:'. . . . . . . . . . . .131 a.in general . . . . . .',
76:'. . . . . . . . . . . . . . . . . . . .',
77:'. . . . . . . . . . . . . . . . .131 b.impoundment . .',
78:'. . . . . . . . . . . . . . . . . . . .',
79:'. . . . . . . . . . . . . . . . . .132 4. audit',
80:'and review . . . . . . . . . . . . . . . . . .',
81:'. . . . . . . . . . . . . . . . . . . .',
82:'.135 a.basic responsibilities . . . . . . . . . . . . . . . . .',
83:'. . . . . . . . . . . . . . . .135 b. gao recommendations and',
84:'matters for consideration . . . . . 136 5. account closing . . . . . . . .',
85:'. . . . . . . . . . . . . . . . . . . .',
86:'. . . . . . . . . . . .137 e. the role of the accounting officers: legal',
87:'decisions . . 137 1. a capsule history . . . . . . . . . . . .',
88:'. . . . . . . . . . . . . . . . . . . .',
89:'. . . . . . .137 a.accounting officers prior to 1894 . . . . . . . .',
90:'. . . . . . . . . . . . . . .137 b.1894–1921: comptroller of the treasury',
91:'. . . . . . . . . . . . . . . . . .138 c. 1921',
92:'to the present time . . . . . . . . . . . . . . . .',
93:'. . . . . . . . . . . . . . .139 2. decisions of the comptroller',
94:'general . . . . . . . . . . . . . . . . . . .',
95:'. . .139 a. general information . . . . . . . . . . . . . .',
96:'. . . . . . . . . . . . . . . . . . . .',
97:'.139 b. matters not considered . . . . . . . . . . . . . . .',
98:'. . . . . . . . . . . . . . . . .142 c.research aids .',
99:'. . . . . . . . . . . . . . . . . . . .',
100:'. . . . . . . . . . . . . . . . . . .145 d.note',
101:'on citations . . . . . . . . . . . . . . . . . .',
102:'. . . . . . . . . . . . . . . . . . .145 3.',
103:'other relevant authorities . . . . . . . . . . . . . . . . .',
104:'. . . . . . . . . . . . . .146 a. gao materials . . .',
105:'. . . . . . . . . . . . . . . . . . . .',
106:'. . . . . . . . . . . . . . . . .146 b.nongao materials .',
107:'. . . . . . . . . . . . . . . . . . . .',
108:'. . . . . . . . . . . . . .148 c.note on title 31 recodification .',
109:'. . . . . . . . . . . . . . . . . . . .',
110:'. . . .149 chapter 2 a. appropriations and related terminology . . . . . . . . .',
111:'. . . . . 23 1. introduction . . . . . . . . . . . .',
112:'. . . . . . . . . . . . . . . . . . . .',
113:'. . . . . . . . . . . . .23 the legal framework 2. concept and types',
114:'of budget authority . . . . . . . . . . . . . . . . .',
115:'. . . .23 a.appropriations . . . . . . . . . . . . . . .',
116:'. . . . . . . . . . . . . . . . . . . .',
117:'. . . . .24 b.contract authority . . . . . . . . . . . . .',
118:'. . . . . . . . . . . . . . . . . . . .',
119:'. . . .26 c.borrowing authority . . . . . . . . . . . . . .',
120:'. . . . . . . . . . . . . . . . . . . .',
121:'.27 d.monetary credits . . . . . . . . . . . . . . . . .',
122:'. . . . . . . . . . . . . . . . . . . .',
123:'.28 e. offsetting receipts . . . . . . . . . . . . . . . .',
124:'. . . . . . . . . . . . . . . . . . . .',
125:'.29 page v gao04261sp appropriations law—vol. i contents f. loan and loan guarantee authority . . . . . .',
126:'. . . . . . . . . . . . . . .210 3. some related concepts .',
127:'. . . . . . . . . . . . . . . . . . . .',
128:'. . . . . . . . . . . . .212 a.spending authority . . . . .',
129:'. . . . . . . . . . . . . . . . . . . .',
130:'. . . . . . . . . .212 b.entitlement authority . . . . . . . .',
131:'. . . . . . . . . . . . . . . . . . . .',
132:'. . . . .213 4. types of appropriations . . . . . . . . . . .',
133:'. . . . . . . . . . . . . . . . . . . .',
134:'. .213 a. classification based on duration . . . . . . . . . . . . .',
135:'. . . . . . . . . . .213 b. classification based on presence or absence of monetary',
136:'limit . . . . . . . . . . . . . . . . . . .',
137:'. . . . . . . . . . . . . . . . . . . .',
138:'. . . . . . . . .214 c. classification based on permanency . . . . . .',
139:'. . . . . . . . . . . . . . .214 d. classification based on availability',
140:'for new obligations . . . 215 e.reappropriation . . . . . . . . . . . .',
141:'. . . . . . . . . . . . . . . . . . . .',
142:'. . . . . .215 b. some basic concepts . . . . . . . . . .',
143:'. . . . . . . . . . . . . . . . . . . .',
144:'. . 215 1. what constitutes an appropriation . . . . . . . . . . . .',
145:'. . . . . . . . . . . .215 2. specific versus general appropriations . . .',
146:'. . . . . . . . . . . . . . . . .221 a.general rule .',
147:'. . . . . . . . . . . . . . . . . . . .',
148:'. . . . . . . . . . . . . . . . . . . .221',
149:'b. two appropriations available for same purpose . . . . . . . . . . 223 3. transfer',
150:'and reprogramming . . . . . . . . . . . . . . . . . .',
151:'. . . . . . . . . . .224 a.transfer . . . . . . . .',
152:'. . . . . . . . . . . . . . . . . . . .',
153:'. . . . . . . . . . . . . . . . .224 b.reprogramming . .',
154:'. . . . . . . . . . . . . . . . . . . .',
155:'. . . . . . . . . . . . . . . .229 4. general provisions: when',
156:'construed as permanent legislation 233 c. relationship of appropriations to other types of legislation . . . . . .',
157:'. . . . . . . . . . . . . . . . . . . .',
158:'. . . . . . . . . . . . . . . . 240 1. distinction between',
159:'authorization and appropriation . . . . . . . . 240 2. specific problem areas and the resolution of',
160:'conflicts . . . . . . . 242 a.introduction . . . . . . . . . .',
161:'. . . . . . . . . . . . . . . . . . . .',
162:'. . . . . . . . . . .242 b.variations in amount . . . . . .',
163:'. . . . . . . . . . . . . . . . . . . .',
164:'. . . . . . . .246 1 appropriation exceeds authorization . . . . . . . .',
165:'. . . . . . . . 246 2 appropriation less than authorization . . . . . .',
166:'. . . . . . . . . 247 3earmarks in authorization act . . . . . .',
167:'. . . . . . . . . . . . . . . . 250 c. variations in',
168:'purpose . . . . . . . . . . . . . . . . . . .',
169:'. . . . . . . . . . . . . . .251 d.period of availability . .',
170:'. . . . . . . . . . . . . . . . . . . .',
171:'. . . . . . . . . . . .252 e. authorization enacted after appropriation . . .',
172:'. . . . . . . . . . . . 256 f. two statutes enacted on same day',
173:'. . . . . . . . . . . . . . . . . . . .',
174:'.259 g. ratification by appropriation . . . . . . . . . . . . . . .',
175:'. . . . . . . . . . . .261 h.repeal by implication . . . . .',
176:'. . . . . . . . . . . . . . . . . . . .',
177:'. . . . . . . .266 i. lack of authorization . . . . . . . .',
178:'. . . . . . . . . . . . . . . . . . . .',
179:'. . . . .269 d. statutory interpretation: determining congressional intent . . . . . . . . .',
180:'. . . . . . . . . . . . . . . . . . . .',
181:'. . . . . . . . . . . . . . . . . . 271 1.',
182:'the goal of statutory construction . . . . . . . . . . . . . . .',
183:'. . . . . . . . .272 2. the “plain meaning” rule . . . . . .',
184:'. . . . . . . . . . . . . . . . . . . .',
185:'. . . . . .274 a.in general . . . . . . . . . . . .',
186:'. . . . . . . . . . . . . . . . . . . .',
187:'. . . . . . . . . . .274 b. the plain meaning rule versus legislative history .',
188:'. . . . . . . . 276 page vi gao04261sp appropriations law—vol. i contents 3. the limits of',
189:'literalism: errors in statutes and “absurd consequences” . . . . . . . . . . . . .',
190:'. . . . . . . . . . . . . . . . . . . .',
191:'. . . . . . . .278 a.errors in statutes . . . . . . . . .',
192:'. . . . . . . . . . . . . . . . . . . .',
193:'. . . . . . . .278 1drafting errors . . . . . . . . . .',
194:'. . . . . . . . . . . . . . . . . . . .',
195:'. . . . . 278 2errorin amount appropriated . . . . . . . . . . .',
196:'. . . . . . . . . . . 280 b.avoiding “absurd consequences” . . . . .',
197:'. . . . . . . . . . . . . . . . . .280 4. statutory',
198:'aids to construction . . . . . . . . . . . . . . . . .',
199:'. . . . . . . . . . .283 a. definitions, effective dates, and severability clauses . .',
200:'. . . . 283 b.the dictionary act . . . . . . . . . . . .',
201:'. . . . . . . . . . . . . . . . . . . .',
202:'. . . .283 c. effect of codification . . . . . . . . . . . .',
203:'. . . . . . . . . . . . . . . . . . . .',
204:'. .284 5. canons of statutory construction . . . . . . . . . . . . .',
205:'. . . . . . . . . . . .285 a.construe the statute as a whole . .',
206:'. . . . . . . . . . . . . . . . . . . .',
207:'. .285 b. give effect to all the language: no “surplusage” . . . . . . . . .',
208:'. 287 c.apply the common meaning of words . . . . . . . . . . . .',
209:'. . . . . . .289 d. give a common construction to the same or similar words 289 e.',
210:'punctuation, grammar, titles, and preambles are relevant but not controlling . . . . . . . . . .',
211:'. . . . . . . . . . . . . . . . . . . .',
212:'. . . . . . . . .292 f. avoid constructions that pose constitutional problems . . . 294',
213:'6. legislative history . . . . . . . . . . . . . . . . .',
214:'. . . . . . . . . . . . . . . . . . . .',
215:'.296 a.uses and limitations . . . . . . . . . . . . . . . .',
216:'. . . . . . . . . . . . . . . . . .296 b.components and',
217:'their relative weight . . . . . . . . . . . . . . . . .',
218:'.298 1committee reports . . . . . . . . . . . . . . . . .',
219:'. . . . . . . . . . . . . . . 298 2floor debates . .',
220:'. . . . . . . . . . . . . . . . . . . .',
221:'. . . . . . . . . . . . . 2100 3hearings . . . . .',
222:'. . . . . . . . . . . . . . . . . . . .',
223:'. . . . . . . . . . . . . . 2102 c.postenactment statements . . .',
224:'. . . . . . . . . . . . . . . . . . . .',
225:'. . . .2103 d.development of the statutory language . . . . . . . . . . .',
226:'. . . . . .2105 7. presumptions and “clear statement” rules . . . . . . . .',
227:'. . . . . . . . 2106 a.presumption in favor of judicial review . . . . .',
228:'. . . . . . . . . . .2106 b. presumption against retroactivity . . . . .',
229:'. . . . . . . . . . . . . . . . .2108 c.federalism presumptions .',
230:'. . . . . . . . . . . . . . . . . . . .',
231:'. . . . . . . .2111 d. presumption against waiver of sovereign immunity . . . . .',
232:'. 2113 chapter 3 a. agency regulations . . . . . . . . . . . . .',
233:'. . . . . . . . . . . . . . . . . . . .',
234:'. . 32 1. the administrative procedure act . . . . . . . . . . . .',
235:'. . . . . . . . . . . . . .33 agency regulations a. the informal rulemaking',
236:'process . . . . . . . . . . . . . . . . . . .',
237:'. . . . .34 and administrative b. informal rulemaking: when required . . . . . . . .',
238:'. . . . . . . . . . . . 39 c. additional requirements for rulemaking . .',
239:'. . . . . . . . . . . . . . . 313 discretion 2. regulations may',
240:'not exceed statutory authority . . . . . . . . . . . . 316 3. “force and',
241:'effect of law” . . . . . . . . . . . . . . . . .',
242:'. . . . . . . . . . . . . . .318 4. waiver of regulations .',
243:'. . . . . . . . . . . . . . . . . . . .',
244:'. . . . . . . . . . . . . .320 5. amendment of regulations . .',
245:'. . . . . . . . . . . . . . . . . . . .',
246:'. . . . . . . . .324 page vii gao04261sp appropriations law—vol. i contents 6. retroactivity . .',
247:'. . . . . . . . . . . . . . . . . . . .',
248:'. . . . . . . . . . . . . . . . . . . .',
249:'.326 b. agency administrative interpretations . . . . . . . . . . . . . . .',
250:'328 1. interpretation of statutes . . . . . . . . . . . . . . .',
251:'. . . . . . . . . . . . . . . . .328 2. interpretation of',
252:'agency’s own regulations . . . . . . . . . . . . . . . . 337',
253:'c. administrative discretion . . . . . . . . . . . . . . . . .',
254:'. . . . . . . . . . . 340 1. introduction . . . . . .',
255:'. . . . . . . . . . . . . . . . . . . .',
256:'. . . . . . . . . . . . . . . . . .340 2. discretion',
257:'is not unlimited . . . . . . . . . . . . . . . . .',
258:'. . . . . . . . . . . . . .342 3. failure or refusal to exercise',
259:'discretion . . . . . . . . . . . . . . . . . . .345',
260:'4. regulations may limit discretion . . . . . . . . . . . . . . .',
261:'. . . . . . . . . .347 5. insufficient funds . . . . . . .',
262:'. . . . . . . . . . . . . . . . . . . .',
263:'. . . . . . . . . . . .349 chapter 4 availability of appropriations: purpose a. general',
264:'principles . . . . . . . . . . . . . . . . . . .',
265:'. . . . . . . . . . . . . . . . . 46 1. introduction:',
266:'31 u.s.c. § 1301a . . . . . . . . . . . . . . . .',
267:'. . . . . . . . . . .46 2. determining authorized purposes . . . . .',
268:'. . . . . . . . . . . . . . . . . . . .',
269:'.49 a. statement of purpose . . . . . . . . . . . . . . .',
270:'. . . . . . . . . . . . . . . . . . . .49',
271:'b. specific purpose stated in appropriation act . . . . . . . . . . . . .',
272:'411 3. new or additional duties . . . . . . . . . . . . . .',
273:'. . . . . . . . . . . . . . . . . .414 4. termination',
274:'of program . . . . . . . . . . . . . . . . . .',
275:'. . . . . . . . . . . . . . . .417 a.termination desired . .',
276:'. . . . . . . . . . . . . . . . . . . .',
277:'. . . . . . . . . . . .417 b.reauthorization pending . . . . . .',
278:'. . . . . . . . . . . . . . . . . . . .',
279:'. . . . .418 b. the “necessary expense” doctrine . . . . . . . . . .',
280:'. . . . . . . . . 419 1. the theory . . . . . . .',
281:'. . . . . . . . . . . . . . . . . . . .',
282:'. . . . . . . . . . . . . . . . . .419 a.relationship to',
283:'the appropriation . . . . . . . . . . . . . . . . . .',
284:'. . . . .422 b.expenditure otherwise prohibited . . . . . . . . . . . .',
285:'. . . . . . . . . .427 c.expenditure otherwise provided for . . . . . .',
286:'. . . . . . . . . . . . . .429 2. general operating expenses . .',
287:'. . . . . . . . . . . . . . . . . . . .',
288:'. . . . . . . .430 a.training . . . . . . . . . . .',
289:'. . . . . . . . . . . . . . . . . . . .',
290:'. . . . . . . . . . . . . .430 b.travel . . . . .',
291:'. . . . . . . . . . . . . . . . . . . .',
292:'. . . . . . . . . . . . . . . . . . . .',
293:'. .431 c. postage expenses . . . . . . . . . . . . . . .',
294:'. . . . . . . . . . . . . . . . . . . .',
295:'. .432 d.books and periodicals . . . . . . . . . . . . . . .',
296:'. . . . . . . . . . . . . . . . . .433 e. miscellaneous',
297:'items incident to the federal workplace . . . . 433 c. specific purpose authorities and limitations . . .',
298:'. . . . . . 435 1. introduction . . . . . . . . . . .',
299:'. . . . . . . . . . . . . . . . . . . .',
300:'. . . . . . . . . . . . .435 2. attendance at meetings and conventions .',
301:'. . . . . . . . . . . . . . . . . .436 a.government employees',
302:'. . . . . . . . . . . . . . . . . . . .',
303:'. . . . . . . . . . .437 1statutory framework . . . . . . .',
304:'. . . . . . . . . . . . . . . . . . . .',
305:'. . . 437 2inability to attend . . . . . . . . . . . . .',
306:'. . . . . . . . . . . . . . . . . . . .',
307:'440 3federally sponsored meetings . . . . . . . . . . . . . . . .',
308:'. . . . . . 441 4rental of space in district of columbia . . . . . .',
309:'. . . . . . . . 442 5military personnel . . . . . . . . .',
310:'. . . . . . . . . . . . . . . . . . . .',
311:'. . . 443 b.nongovernment personnel . . . . . . . . . . . . . .',
312:'. . . . . . . . . . . . . . .444 page viii gao04261sp appropriations law—vol.',
313:'i contents 131 u.s.c. § 1345 . . . . . . . . . . . . . .',
314:'. . . . . . . . . . . . . . . . . . . .',
315:'444 2invitational travel . . . . . . . . . . . . . . . . .',
316:'. . . . . . . . . . . . . . . . 447 3use of grant',
317:'funds . . . . . . . . . . . . . . . . . . .',
318:'. . . . . . . . . . . . . 450 3. attorney’s fees . . .',
319:'. . . . . . . . . . . . . . . . . . . .',
320:'. . . . . . . . . . . . . . . . . .451 a.introduction .',
321:'. . . . . . . . . . . . . . . . . . . .',
322:'. . . . . . . . . . . . . . . . . . . .451',
323:'b. hiring of attorneys by government agencies . . . . . . . . . . . . .',
324:'452 c. suits against government officers and employees . . . . . . . . 455 d.suits unrelated to',
325:'federal employees . . . . . . . . . . . . . . . . . .',
326:'.467 e.claims by federal employees . . . . . . . . . . . . . . .',
327:'. . . . . . . . . . .468 1discrimination proceedings . . . . . . .',
328:'. . . . . . . . . . . . . . . . . 468 2other employee',
329:'claims . . . . . . . . . . . . . . . . . . .',
330:'. . . . . . . . . 470 f. criminal justice act . . . . . .',
331:'. . . . . . . . . . . . . . . . . . . .',
332:'. . . . . . . . .474 1types of actions covered . . . . . . .',
333:'. . . . . . . . . . . . . . . . . . . 475',
334:'2miscellaneous cases . . . . . . . . . . . . . . . . . .',
335:'. . . . . . . . . . . . 476 g.equal access to justice act . .',
336:'. . . . . . . . . . . . . . . . . . . .',
337:'. . . . . .477 h. contract matters . . . . . . . . . . .',
338:'. . . . . . . . . . . . . . . . . . . .',
339:'. . . . . . .482 1bid protests . . . . . . . . . . .',
340:'. . . . . . . . . . . . . . . . . . . .',
341:'. . . . . . . 482 2contract disputes . . . . . . . . . .',
342:'. . . . . . . . . . . . . . . . . . . .',
343:'. . . 484 i. public participation in administrative proceedings: funding of intervenors . . . . . . .',
344:'. . . . . . . . . . . . . . . . . . . .',
345:'. . . . . . . . . . . . . . .485 4. compensation restrictions . .',
346:'. . . . . . . . . . . . . . . . . . . .',
347:'. . . . . . . . .492 a.dual compensation . . . . . . . . .',
348:'. . . . . . . . . . . . . . . . . . . .',
349:'. . . . . .493 b.employment of aliens . . . . . . . . . . .',
350:'. . . . . . . . . . . . . . . . . . . .',
351:'. .493 c.forfeiture of annuities and retired pay . . . . . . . . . . . .',
352:'. . . . . .496 1general principles . . . . . . . . . . . .',
353:'. . . . . . . . . . . . . . . . . . . .',
354:'496 2the alger hiss case . . . . . . . . . . . . . . .',
355:'. . . . . . . . . . . . . . . . 497 3types of offenses',
356:'covered . . . . . . . . . . . . . . . . . . .',
357:'. . . . . . 498 4related statutory provisions . . . . . . . . . .',
358:'. . . . . . . . . . . . . 499 5. entertainment—recreation—morale and welfare . .',
359:'. . . . . . . . 4100 a.introduction . . . . . . . . . .',
360:'. . . . . . . . . . . . . . . . . . . .',
361:'. . . . . . . . . .4100 1application of the rule . . . . . .',
362:'. . . . . . . . . . . . . . . . . . . .',
363:'. 4101 2what is entertainment? . . . . . . . . . . . . . . .',
364:'. . . . . . . . . . . . 4102 b.food for government employees . . .',
365:'. . . . . . . . . . . . . . . . . . .4103 1',
366:'working at official duty station under unusual conditions . . . . . . . . . . . .',
367:'. . . . . . . . . . . . . . . . . . . .',
368:'. . . . . . 4104 2 government employees training act . . . . . . . .',
369:'. . . . . . . 4107 3award ceremonies . . . . . . . . . .',
370:'. . . . . . . . . . . . . . . . . . . .',
371:'. 4116 4cafeterias and lunch facilities . . . . . . . . . . . . . .',
372:'. . . . . . . 4119 c. entertainment for government employees other than food . . . .',
373:'. . . . . . . . . . . . . . . . . . . .',
374:'. . . . . . . . . . . . . . . . . . . .',
375:'. . .4120 1miscellaneous cases . . . . . . . . . . . . . . .',
376:'. . . . . . . . . . . . . . 4120 2cultural awareness programs . .',
377:'. . . . . . . . . . . . . . . . . . . 4120',
378:'page ix gao04261sp appropriations law—vol. i contents d. entertainment of nongovernment personnel . . . . . . . .',
379:'. . . . . 4123 e. recreational and welfare facilities for government personnel . . . . . .',
380:'. . . . . . . . . . . . . . . . . . . .',
381:'. . . . . . . . . . . . . . . . .4126 1 the rules:',
382:'older cases and modern trends . . . . . . . . . . . 4126 2child care .',
383:'. . . . . . . . . . . . . . . . . . . .',
384:'. . . . . . . . . . . . . . . . . 4130 f. reception',
385:'and representation funds . . . . . . . . . . . . . . . . .',
386:'. .4135 6. fines and penalties . . . . . . . . . . . . . .',
387:'. . . . . . . . . . . . . . . . . . . .',
388:'. . .4140 7. firefighting and other municipal services . . . . . . . . . . .',
389:'. . . . . . 4146 a. firefighting services: availability of appropriations . . . . . . 4146',
390:'b. federal fire prevention and control act of 1974 . . . . . . . . . 4150 c.other',
391:'municipal services . . . . . . . . . . . . . . . . . .',
392:'. . . . . . . . . . .4151 8. gifts and awards . . . . .',
393:'. . . . . . . . . . . . . . . . . . . .',
394:'. . . . . . . . . . . . . .4155 a.gifts . . . . .',
395:'. . . . . . . . . . . . . . . . . . . .',
396:'. . . . . . . . . . . . . . . . . . . .',
397:'. .4155 b.contests . . . . . . . . . . . . . . . . .',
398:'. . . . . . . . . . . . . . . . . . . .',
399:'. . . . . . .4161 1entry fees . . . . . . . . . . .',
400:'. . . . . . . . . . . . . . . . . . . .',
401:'. . . . . . . 4161 2governmentsponsored contests . . . . . . . . . .',
402:'. . . . . . . . . 4162 c. awards . . . . . . . .',
403:'. . . . . . . . . . . . . . . . . . . .',
404:'. . . . . . . . . . . . . . . . .4164 9. guard services:',
405:'antipinkerton act . . . . . . . . . . . . . . . . . .',
406:'. . . . .4171 a. evolution of the law prior to 57 comp. gen. 524 . . . .',
407:'. . . . . 4171 b. 57 comp. gen. 524 and the present state of the law . .',
408:'. . . . 4174 10. insurance . . . . . . . . . . . . .',
409:'. . . . . . . . . . . . . . . . . . . .',
410:'. . . . . . . . . . . .4175 a. the selfinsurance rule . . . .',
411:'. . . . . . . . . . . . . . . . . . . .',
412:'. . . . . . .4175 b.exceptions to the rule . . . . . . . . .',
413:'. . . . . . . . . . . . . . . . . . . .',
414:'. .4179 1 departments and agencies generally . . . . . . . . . . . . .',
415:'. . . 4179 2government corporations . . . . . . . . . . . . . .',
416:'. . . . . . . . . . . 4183 c. specific areas of concern . . .',
417:'. . . . . . . . . . . . . . . . . . . .',
418:'. . . . . .4183 1 property owned by government contractors . . . . . . . .',
419:'. 4183 2use of motor vehicles . . . . . . . . . . . . . .',
420:'. . . . . . . . . . . . . . 4184 3losses in shipment . .',
421:'. . . . . . . . . . . . . . . . . . . .',
422:'. . . . . . . . 4186 4bonding of government personnel . . . . . . .',
423:'. . . . . . . . . . 4187 11. lobbying and related matters . . . .',
424:'. . . . . . . . . . . . . . . . . . . .',
425:'. . .4188 a.introduction . . . . . . . . . . . . . . . .',
426:'. . . . . . . . . . . . . . . . . . . .',
427:'. . . .4188 b.penal statutes . . . . . . . . . . . . . .',
428:'. . . . . . . . . . . . . . . . . . . .',
429:'. . . . .4189 c.appropriation act restrictions . . . . . . . . . . . .',
430:'. . . . . . . . . . . .4196 1origin and general considerations . . . .',
431:'. . . . . . . . . . . . . . 4196 2selfaggrandizement . . . .',
432:'. . . . . . . . . . . . . . . . . . . .',
433:'. . . . . 4199 3covert propaganda . . . . . . . . . . . .',
434:'. . . . . . . . . . . . . . . . . . 4202 4pending',
435:'legislation: overview . . . . . . . . . . . . . . . . . .',
436:'. . . 4203 5 cases involving “grassroots” lobbying violations . . . . . 4207 6 pending legislation: cases',
437:'in which no violation was found . . . . . . . . . . . . . .',
438:'. . . . . . . . . . . . . . . . . . . .',
439:'. . . . . . . . 4210 page x gao04261sp appropriations law—vol. i contents 7 pending legislation: providing',
440:'assistance to private lobbying groups . . . . . . . . . . . . . . .',
441:'. . . . . . . . . . . . . . . . . . . .',
442:'. . . . . . 4213 8 promotion of legislative proposals: prohibited activity short of grass roots lobbying .',
443:'. . . . . . . . . . . . . . . . . . . .',
444:'. . . . . . 4215 9 dissemination of political or misleading information . 4218 d.lobbying with grant funds',
445:'. . . . . . . . . . . . . . . . . . . .',
446:'. . . . . . .4219 e. informational activities . . . . . . . . . .',
447:'. . . . . . . . . . . . . . . . . . . .',
448:'.4227 f. advertising and the employment of publicity experts . . . . . 4229 1commercial advertising . . .',
449:'. . . . . . . . . . . . . . . . . . . .',
450:'. . . 4229 2 advertising of government programs, products, or services . . . . . . . .',
451:'. . . . . . . . . . . . . . . . . . . .',
452:'. . . . . . . . . . . . 4230 3publicity experts . . . . .',
453:'. . . . . . . . . . . . . . . . . . . .',
454:'. . . . . . . 4232 12. membership fees . . . . . . . . .',
455:'. . . . . . . . . . . . . . . . . . . .',
456:'. . . . . . . . .4234 a. 5 u.s.c. § 5946 . . . . . .',
457:'. . . . . . . . . . . . . . . . . . . .',
458:'. . . . . . . . . . . . .4234 b.attorneys . . . . . .',
459:'. . . . . . . . . . . . . . . . . . . .',
460:'. . . . . . . . . . . . . . . . .4240 13. personal expenses',
461:'and furnishings . . . . . . . . . . . . . . . . . .',
462:'. . . .4242 a.introduction . . . . . . . . . . . . . . .',
463:'. . . . . . . . . . . . . . . . . . . .',
464:'. . . . .4242 b.business or calling cards . . . . . . . . . . .',
465:'. . . . . . . . . . . . . . . . . .4243 c.health, medical',
466:'care and treatment . . . . . . . . . . . . . . . . .',
467:'. . .4245 1medical care . . . . . . . . . . . . . . .',
468:'. . . . . . . . . . . . . . . . . . . .',
469:'. 4245 2purchase of healthrelated items . . . . . . . . . . . . . .',
470:'. . . . . 4250 3the rehabilitation act . . . . . . . . . . .',
471:'. . . . . . . . . . . . . . . . 4253 d.office furnishings decorative',
472:'items . . . . . . . . . . . . . . . . . .4256 e.personal',
473:'qualification expenses . . . . . . . . . . . . . . . . . .',
474:'. . . . .4258 f. photographs . . . . . . . . . . . . .',
475:'. . . . . . . . . . . . . . . . . . . .',
476:'. . . . . . .4261 g. seasonal greeting cards and decorations . . . . . . .',
477:'. . . . . . . . 4262 1greeting cards . . . . . . . . .',
478:'. . . . . . . . . . . . . . . . . . . .',
479:'. . . . . 4262 2seasonal decorations . . . . . . . . . . . .',
480:'. . . . . . . . . . . . . . . . . 4263 h.traditional ceremonies',
481:'. . . . . . . . . . . . . . . . . . . .',
482:'. . . . . . . . . . .4263 i. wearing apparel . . . . . .',
483:'. . . . . . . . . . . . . . . . . . . .',
484:'. . . . . . . . . . .4265 j. miscellaneous personal expenses . . . . .',
485:'. . . . . . . . . . . . . . . . .4271 1commuting and parking',
486:'. . . . . . . . . . . . . . . . . . . .',
487:'. . . . . . 4271 2flexiplace . . . . . . . . . . . .',
488:'. . . . . . . . . . . . . . . . . . . .',
489:'. . . . . . 4273 3miscellaneous employee expenses . . . . . . . . . .',
490:'. . . . . . . 4274 14. rewards . . . . . . . . . .',
491:'. . . . . . . . . . . . . . . . . . . .',
492:'. . . . . . . . . . . . . . . .4276 a.rewards to informers .',
493:'. . . . . . . . . . . . . . . . . . . .',
494:'. . . . . . . . . . .4276 1reward as “necessary expense” . . . . .',
495:'. . . . . . . . . . . . . . . 4276 2 payments to informers:',
496:'internal revenue service . . . . 4278 3 payments to informers: customs service . . . . . .',
497:'. . . . . . 4280 b.missing government employees . . . . . . . . . .',
498:'. . . . . . . . . . . . .4281 c. lost ormissing government property . .',
499:'. . . . . . . . . . . . . . . . .4282 d.contractual basis .',
500:'. . . . . . . . . . . . . . . . . . . .',
501:'. . . . . . . . . . . . . . .4283 page xi gao04261sp appropriations law—vol.',
502:'i contents e.rewards to government employees . . . . . . . . . . . . . .',
503:'. . . . . .4285 15. state and local taxes . . . . . . . . .',
504:'. . . . . . . . . . . . . . . . . . . .',
505:'. . . . . .4286 a.introduction . . . . . . . . . . . . .',
506:'. . . . . . . . . . . . . . . . . . . .',
507:'. . . . . . .4286 b. tax on business transactions where the federal government is a party .',
508:'. . . . . . . . . . . . . . . . . . . .',
509:'. . . . . . . . . . . . . . . . . . . .',
510:'. . . .4289 1general principles . . . . . . . . . . . . . .',
511:'. . . . . . . . . . . . . . . . . 4289 2public utilities',
512:'. . . . . . . . . . . . . . . . . . . .',
513:'. . . . . . . . . . . . . . . 4295 c.propertyrelated taxes . .',
514:'. . . . . . . . . . . . . . . . . . . .',
515:'. . . . . . . . .4296 d.taxes paid by federal employees . . . . . .',
516:'. . . . . . . . . . . . . . . .4301 1parking taxes . .',
517:'. . . . . . . . . . . . . . . . . . . .',
518:'. . . . . . . . . . . . . 4302 2hotel and meal taxes . .',
519:'. . . . . . . . . . . . . . . . . . . .',
520:'. . . . . . . 4303 3tolls . . . . . . . . . . .',
521:'. . . . . . . . . . . . . . . . . . . .',
522:'. . . . . . . . . . . . 4305 4 state and local income withholding taxes',
523:'. . . . . . . . . . . 4306 5possessory interest taxes . . . . .',
524:'. . . . . . . . . . . . . . . . . . . .',
525:'4306 6occupational license fees . . . . . . . . . . . . . . . .',
526:'. . . . . . . . . 4306 e. refund and recovery of tax improperly paid . .',
527:'. . . . . . . . . . 4307 16. telephone services . . . . . .',
528:'. . . . . . . . . . . . . . . . . . . .',
529:'. . . . . . . . . . .4308 a. telephone service to private residences . . .',
530:'. . . . . . . . . . . . . 4308 1 the statutory prohibition and its',
531:'major exception . . . . 4308 2funds to which the statute applies . . . . . . .',
532:'. . . . . . . . . . 4310 3what is a private residence? . . . .',
533:'. . . . . . . . . . . . . . . . . . . 4311',
534:'4application of the general rule . . . . . . . . . . . . . . .',
535:'. . . . . . 4312 5exceptions . . . . . . . . . . . .',
536:'. . . . . . . . . . . . . . . . . . . .',
537:'. . . . . 4314 b.longdistance calls . . . . . . . . . . . .',
538:'. . . . . . . . . . . . . . . . . . . .',
539:'. .4319 c. mobile or cellular phones . . . . . . . . . . . . .',
540:'. . . . . . . . . . . . . . . .4319 chapter 5 a. general',
541:'principles—duration of appropriations . . . . . . . 53 1. introduction . . . . . . .',
542:'. . . . . . . . . . . . . . . . . . . .',
543:'. . . . . . . . . . . . . . . . . .53 availability of',
544:'2. types of appropriations . . . . . . . . . . . . . . . .',
545:'. . . . . . . . . . . . . . . . . .54 appropriations: time',
546:'a.annual appropriations . . . . . . . . . . . . . . . . . .',
547:'. . . . . . . . . . . . . . .54 b.multiple year appropriations . .',
548:'. . . . . . . . . . . . . . . . . . . .',
549:'. . . . . .57 c. noyear appropriations . . . . . . . . . . .',
550:'. . . . . . . . . . . . . . . . . . . .',
551:'. .57 3. obligation or expenditure prior to start of fiscal year . . . . . . . .',
552:'59 b. the bona fide needs rule . . . . . . . . . . . . .',
553:'. . . . . . . . . . . . . . 511 1. background . . .',
554:'. . . . . . . . . . . . . . . . . . . .',
555:'. . . . . . . . . . . . . . . . . . . .',
556:'.511 a.introduction . . . . . . . . . . . . . . . . . .',
557:'. . . . . . . . . . . . . . . . . . . .',
558:'. . .511 b.the concept . . . . . . . . . . . . . . .',
559:'. . . . . . . . . . . . . . . . . . . .',
560:'. . . . . .512 2. future years’ needs . . . . . . . . . .',
561:'. . . . . . . . . . . . . . . . . . . .',
562:'. . . . . . .515 3. prior years’ needs . . . . . . . . .',
563:'. . . . . . . . . . . . . . . . . . . .',
564:'. . . . . . . . . .518 4. delivery of materials beyond the fiscal year . .',
565:'. . . . . . . . . . . . . .522 5. services rendered beyond the fiscal',
566:'year . . . . . . . . . . . . . . . . . .523 page',
567:'xii gao04261sp appropriations law—vol. i contents 6. replacement contracts . . . . . . . . . . .',
568:'. . . . . . . . . . . . . . . . . . . .',
569:'. . .528 7. contract modifications and amendments affecting price . . . . . 533 8. multiyear contracts .',
570:'. . . . . . . . . . . . . . . . . . . .',
571:'. . . . . . . . . . . . . . . .537 a.introduction . . .',
572:'. . . . . . . . . . . . . . . . . . . .',
573:'. . . . . . . . . . . . . . . . . .537 b. multiple',
574:'year and noyear appropriations . . . . . . . . . . . . . . . .',
575:'539 c.fiscal year appropriations . . . . . . . . . . . . . . . .',
576:'. . . . . . . . . . . . .541 d.contracts with no financial obligation . .',
577:'. . . . . . . . . . . . . . . .543 9. specific statutes providing',
578:'for multiyear and other contracting authorities . . . . . . . . . . . . . .',
579:'. . . . . . . . . . . . . . . . . . . .',
580:'. . . . . . . . . . .544 a.severable services contracts . . . . . .',
581:'. . . . . . . . . . . . . . . . . . . .',
582:'.544 b.5year contract authority . . . . . . . . . . . . . . . .',
583:'. . . . . . . . . . . . . .545 110 u.s.c. §§ 2306b, 2306c .',
584:'. . . . . . . . . . . . . . . . . . . .',
585:'. . . . . 545 241 u.s.c. § 254c . . . . . . . . . .',
586:'. . . . . . . . . . . . . . . . . . . .',
587:'. . . . 546 c. examples of agencyspecific multiyear contracting authorities . . . . . . . .',
588:'. . . . . . . . . . . . . . . . . . . .',
589:'. . . . . . . . . . . . . . .547 10. grants and cooperative agreements',
590:'. . . . . . . . . . . . . . . . . . . .',
591:'. . .548 c. advance payments . . . . . . . . . . . . . .',
592:'. . . . . . . . . . . . . . . . . . . .',
593:'. 550 1. the statutory prohibition . . . . . . . . . . . . . .',
594:'. . . . . . . . . . . . . . . . . .550 2. government',
595:'procurement contracts . . . . . . . . . . . . . . . . . .',
596:'. . . . .554 a. background . . . . . . . . . . . . .',
597:'. . . . . . . . . . . . . . . . . . . .',
598:'. . . . . . . . .554 b. contract financing . . . . . . . .',
599:'. . . . . . . . . . . . . . . . . . . .',
600:'. . . . . . . .555 c. payment . . . . . . . . . .',
601:'. . . . . . . . . . . . . . . . . . . .',
602:'. . . . . . . . . . . . . . .560 3. lease and rental agreements',
603:'. . . . . . . . . . . . . . . . . . . .',
604:'. . . . . . . . .562 4. publications . . . . . . . . .',
605:'. . . . . . . . . . . . . . . . . . . .',
606:'. . . . . . . . . . . . . . .563 5. other governmental entities .',
607:'. . . . . . . . . . . . . . . . . . . .',
608:'. . . . . . . .565 d. disposition of appropriation balances . . . . . . .',
609:'. . . . . . . . . 567 1. terminology . . . . . . . .',
610:'. . . . . . . . . . . . . . . . . . . .',
611:'. . . . . . . . . . . . . . . .567 2. evolution of the',
612:'law . . . . . . . . . . . . . . . . . . .',
613:'. . . . . . . . . . . . . . . . .568 3. expired appropriation',
614:'accounts . . . . . . . . . . . . . . . . . . .',
615:'. . . . . . .571 4. closed appropriation accounts . . . . . . . . .',
616:'. . . . . . . . . . . . . . . . . .573 5. exemptions',
617:'from the account closing procedures . . . . . . . . . . . 575 6. noyear appropriations',
618:'. . . . . . . . . . . . . . . . . . . .',
619:'. . . . . . . . . . . . . .577 7. repayments and deobligations . .',
620:'. . . . . . . . . . . . . . . . . . . .',
621:'. . . . .578 a. repayments . . . . . . . . . . . . .',
622:'. . . . . . . . . . . . . . . . . . . .',
623:'. . . . . . . . .578 b.deobligations . . . . . . . . . .',
624:'. . . . . . . . . . . . . . . . . . . .',
625:'. . . . . . . . . .580 e. effect of litigation on period of availability . .',
626:'. . . . . . . . 581 page xiii gao04261sp appropriations law—vol. i contents page xiv gao04261sp appropriations',
627:'law—vol. i chapter 1 introduction a. nature of appropriations law . . . . . . . . . .',
628:'. . . . . . . . . . . . . . . 12 b. the congressional “power',
629:'of the purse” . . . . . . . . . . . . . . . 13 c.',
630:'historical perspective. . . . . . . . . . . . . . . . . . .',
631:'. . . . . . . . . . . . . 114 1. evolution of the budget and',
632:'appropriations process . . . . . . . . 114 2. gao’s role in the process . . .',
633:'. . . . . . . . . . . . . . . . . . . .',
634:'. . . . . . . . .121 d. “life cycle” of an appropriation . . . . .',
635:'. . . . . . . . . . . . . . . . 124 1. executive budget',
636:'formulation and transmittal . . . . . . . . . . . . . 125 2. congressional action',
637:'. . . . . . . . . . . . . . . . . . . .',
638:'. . . . . . . . . . . . . . . .126 a.summary of congressional process',
639:'. . . . . . . . . . . . . . . . . . . .',
640:'.126 b.points of order . . . . . . . . . . . . . . . .',
641:'. . . . . . . . . . . . . . . . . . . .',
642:'. . .129 3. budget execution and control . . . . . . . . . . . .',
643:'. . . . . . . . . . . . . . . .131 a.in general . .',
644:'. . . . . . . . . . . . . . . . . . . .',
645:'. . . . . . . . . . . . . . . . . . . .',
646:'.131 b.impoundment . . . . . . . . . . . . . . . . . .',
647:'. . . . . . . . . . . . . . . . . . . .',
648:'. .132 4. audit and review . . . . . . . . . . . . . .',
649:'. . . . . . . . . . . . . . . . . . . .',
650:'. . . . .135 a.basic responsibilities . . . . . . . . . . . . .',
651:'. . . . . . . . . . . . . . . . . . . .135',
652:'b. gao recommendations and matters for consideration . . . . . 136 5. account closing . . . .',
653:'. . . . . . . . . . . . . . . . . . . .',
654:'. . . . . . . . . . . . . . . .137 e. the role of',
655:'the accounting officers: legal decisions . . 137 1. a capsule history . . . . . . . .',
656:'. . . . . . . . . . . . . . . . . . . .',
657:'. . . . . . . . . . .137 a.accounting officers prior to 1894 . . . .',
658:'. . . . . . . . . . . . . . . . . . .137 b.1894–1921:',
659:'comptroller of the treasury . . . . . . . . . . . . . . . .',
660:'. .138 c. 1921 to the present time . . . . . . . . . . . .',
661:'. . . . . . . . . . . . . . . . . . .139 2.',
662:'decisions of the comptroller general . . . . . . . . . . . . . . .',
663:'. . . . . . .139 a. general information . . . . . . . . . .',
664:'. . . . . . . . . . . . . . . . . . . .',
665:'. . . . .139 b. matters not considered . . . . . . . . . . .',
666:'. . . . . . . . . . . . . . . . . . . .',
667:'.142 c.research aids . . . . . . . . . . . . . . . . .',
668:'. . . . . . . . . . . . . . . . . . . .',
669:'. . .145 d.note on citations . . . . . . . . . . . . . .',
670:'. . . . . . . . . . . . . . . . . . . .',
671:'. . .145 3. other relevant authorities . . . . . . . . . . . . .',
672:'. . . . . . . . . . . . . . . . . .146 a. gao',
673:'materials . . . . . . . . . . . . . . . . . . .',
674:'. . . . . . . . . . . . . . . . . . . .',
675:'.146 b.nongao materials . . . . . . . . . . . . . . . . .',
676:'. . . . . . . . . . . . . . . . . .148 c.note on',
677:'title 31 recodification . . . . . . . . . . . . . . . . .',
678:'. . . . . . . .149 page 11 gao04261sp appropriations law—vol. i chapter 1 introduction “[t]he protection of',
679:'the public fisc is a matter that is of interest to every citizen…” brock v. pierce county, 476 u.s. 253,',
680:'262 1986. a. nature of appropriations law a federal agency is a creature of law and can function only to',
681:'the extent authorized by law.1 the supreme court has expressed what is perhaps the quintessential axiom of “appropriations law” as',
682:'follows: “the established rule is that the expenditure of public funds is proper only when authorized by congress, not that',
683:'public funds may be expended unless prohibited by congress.” united states v. maccollom, 426 u.s. 317, 321 1976. see also',
684:'b288266, jan. 27, 2003. thus, the concept of “legal authority” is central to the spending of federal money. when we',
685:'use the term “federal appropriations law” or “federal fiscal law,” we mean that body of law that governs the availability',
686:'and use of federal funds. federal funds are made available for obligation and expenditure by means of appropriation acts or',
687:'occasionally by other legislation and the subsequent administrative actions that release appropriations to the spending agencies. the use or “availability”',
688:'of appropriations once enacted and released that is, the rules governing the purpose, amounts, manner, and timing of obligations and',
689:'expenditures is controlled by various authorities: the terms of the appropriation act itself; legislation, if any, authorizing the appropriation; the',
690:'“organic” or “enabling” legislation, which prescribes a function or creates a program that the appropriation funds; general statutory provisions that',
691:'allow or prohibit certain uses of appropriated funds; and general rules that have been developed largely through decisions of the',
692:'comptroller general and the courts. these sources, together with certain provisions of the constitution of the united states, form the',
693:'basis of “appropriations law”—an area where questions may arise in as many contexts as there are federal actions that involve',
694:'spending money. 1 see, e.g., atlantic city electric co. v. federal energy regulatory commission, 295 f.3d 1, 8 d.c. cir.',
695:'2002; b288266, jan. 27, 2003. page 12 gao04261sp appropriations law—vol. i chapter 1 introduction although this publication incorporates some other',
696:'relevant authorities, its primary focus is on the decisions and opinions of the “accounting officers of the government”—the comptroller general',
697:'of the united states and his predecessors.2 b. the congressional “power of the purse” the congressional “power of the purse”',
698:'refers to the power of congress to appropriate funds and to prescribe the conditions governing the use of those funds.3',
699:'the power derives from specific provisions of the constitution of the united states. first, article i, section 8 empowers congress',
700:'to “pay the debts and provide for the common defence and general welfare of the united states,” and to— “make',
701:'all laws which shall be necessary and proper for carrying into execution the foregoing powers [listed in art. i, §',
702:'8], and all other powers vested by this constitution in the government of the united states, or in any department',
703:'or officer thereof.” next, the socalled appropriations clause, the first part of article i, section 9, clause 7, provides that—',
704:'“no money shall be drawn from the treasury, but in consequence of appropriations made by law… .” 2 early decisions',
705:'often referred to the “accounting officers of the government.” while this phrase has fallen into disuse, its purpose was to',
706:'distinguish those matters within the jurisdiction of the comptroller general and the general accounting office and their predecessors from those',
707:'matters within the jurisdiction of the “law officers of the government”—the attorney general and the department of justice. 3 the',
708:'phrase itself is well known, and there are an increasing number of articles describing and analyzing the substantive aspects of',
709:'the power. see, e.g., sen. robert c. byrd, the control of the purse and the line item veto act, 35',
710:'harv. j. on legis. 297 1998; col. richard d. rosen, funding “nontraditional” military operations: the alluring myth of a presidential',
711:'power of the purse, 155 mil. l. rev. 1 1998; charles tiefer, controlling federal agencies by claims on their appropriations?',
712:'the takings bill and the power of the purse, 13 yale j. on reg. 501 1996; kate stith, congress’ power',
713:'of the purse, 97 yale l.j. 1343 1988. page 13 gao04261sp appropriations law—vol. i chapter 1 introduction the appropriations clause',
714:'has been described as “the most important single curb in the constitution on presidential power.”4 it means that “no money',
715:'can be paid out of the treasury unless it has been appropriated by an act of congress.” cincinnati soap co.',
716:'v. united states, 301 u.s. 308, 321 1937. see also b300192, nov. 13, 2002. regardless of the nature of the',
717:'payment—salaries, payments promised under a contract, payments ordered by a court, whatever—a federal agency may not make a payment from',
718:'the united states treasury unless congress has made the funds available. as the supreme court stated well over a century',
719:'more than 150 years ago: “however much money may be in the treasury at any one time, not a dollar',
720:'of it can be used in the payment of any thing not… previously sanctioned [by a congressional appropriation].” reeside v.',
721:'walker, 52 u.s. 11 how. 272, 291 1850. this prescription remains as valid today as it was when it was',
722:'written.5 in 1990, citing both cincinnati soap and reeside, the supreme court reiterated that any exercise of power by a',
723:'government agency “is limited by a valid reservation of congressional control over funds in the treasury.” office of personnel management',
724:'v. richmond, 496 u.s. 414, 425, 110 s. ct. 2465, 2472 1990.6 4 edward s. corwin, the constitution and what',
725:'it means today, 134 14th ed. 1978. 5 cf., e.g., flick v. liberty mutual fire insurance co., 205 f.3d 386,',
726:'395 9th cir. 2000, quoting reeside, supra. 6 numerous similar statements exist. see, e.g., knote v. united states, 95 u.s.',
727:'149, 154 1877; gowland v. aetna, 143 f.3d 951, 955 5th cir. 1998; hart’s case, 16 ct. cl. 459, 484',
728:'1880, aff’d, hart v. united states, 118 u.s. 62 1886; jamal v. travelers lloyds of texas insurance co., 131 f.',
729:'supp. 2d 910, 919 s.d. tex. 2001; doe v. mathews, 420 f. supp. 865, 870–71 d. n.j. 1976. page 14',
730:'gao04261sp appropriations law—vol. i chapter 1 introduction as these statements by the supreme court make clear, the congressional power of',
731:'the purse reflects the fundamental proposition that a federal agency is dependent on congress for its funding.7 at its most',
732:'basic level, this means that it is up to congress to decide whether or not to provide funds for a',
733:'particular program or activity and to fix the level of that funding. in exercising its appropriations power, however, congress is',
734:'not limited to these elementary functions. it is also well established that congress can, within constitutional limits, determine the terms',
735:'and conditions under which an appropriation may be used. see, e.g., new york v. united states, 505 u.s. 144, 167',
736:'1992; cincinnati soap co., 301 u.s. at 321; oklahoma v. schweiker, 655 f.2d 401, 406 d.c. cir. 1981 citing numerous',
737:'cases; spaulding v. douglas aircraft co., 60 f. supp. 985, 988 s.d. cal. 1945, aff’d, 154 f.2d 419 9th cir.',
738:'1946. thus, congress can decree, either in the appropriation itself or by separate statutory provisions, what will be required to',
739:'make the appropriation “legally available” for any expenditure. it can, for example, describe the purposes for which the funds may',
740:'be used, the length of time the funds may remain available for these uses, and the maximum amount an agency',
741:'may spend on particular elements of a program. in this manner, congress may, and often does, use its appropriation power',
742:'to accomplish policy objectives and to establish priorities among federal programs. 7 in schism v. united states, 316 f.3d 1259,',
743:'1288 fed. cir. 2002, cert. denied, u.s. , 123 s. ct. 2246 2003, retired military personnel sued the government for',
744:'breach of an impliedinfact contract, claiming that recruiters had promised free lifetime medical care for them and their dependents, in',
745:'exchange for 20 years of service. the court rejected those claims, observing: “as commanderinchief, the president does not have the',
746:'constitutional authority to make promises about entitlements for life to military personnel that bind the government because such powers would',
747:'encroach on congress’ constitutional prerogative to appropriate funding. under article i, § 8, only congress has the power of the',
748:'purse. to say that the executive branch could promise future funds for activities that congress itself had not authorized… would',
749:'allow the executive branch to commandeer the power of the legislative branch.” page 15 gao04261sp appropriations law—vol. i chapter 1',
750:'introduction congress can also use its appropriation power for other measures. it can, for example, include a provision in an',
751:'appropriation act prohibiting the use of funds for a particular program. by doing this without amending the program legislation, congress',
752:'can effectively suspend operation of the program for budgetary or policy reasons, or perhaps simply defer further consideration of the',
753:'merits of the program. the courts recognized the validity of this application of the appropriation power. see, e.g., united states',
754:'v. will, 449 u.s. 200, 222 1980; united states v. dickerson, 310 u.s. 554 1940. for a recent example of',
755:'this, see atlantic fish spotters ass’n v. evans, 321 f.3d 220, 225, 229 1st cir. 2003, which considered an appropriation',
756:'act provision banning the use of federal funds to grant permits to those fishermen who would use “spotter planes” to',
757:'locate atlantic bluefin tuna. at issue was whether the ban was temporary or permanent in nature. the court found the',
758:'ban to be a temporary i.e., annual provision, based on the language used in it.8 the court commented: “[we do',
759:'not] consider it unreasonable for congress to enact such a ban for one year only. the record lays out the',
760:'competing public policy interests that the ban affects. the choice to balance such interests by temporizing—putting a ban in place',
761:'for one year and requiring it to be reenacted the following year to remain in effect—is a valid exercise of',
762:'legislative prerogative. politics is, after all, the art of compromise.” 321 f.3d at 225. congress also may use appropriation act',
763:'provisions to impose preconditions on a program’s use of the funds being appropriated. the preconditions on use often effectuate congressional',
764:'oversight of the program. in american telephone & telegraph v. united states, 307 f.3d 1374, 1376–79 fed. cir. 2003, the',
765:'court addressed just such a provision found in the department of defense appropriation act for fiscal year 1988. the provision',
766:'specified that “[n]one of the funds provided… in this act may be obligated or expended for fixed pricetype contracts in',
767:'excess of $10,000,000 for the development of a major system or 8 we address the duration of provisions like this',
768:'in chapter 2. page 16 gao04261sp appropriations law—vol. i chapter 1 introduction subsystem unless the under secretary of defense for',
769:'acquisition determines, in writing, that program risk has been reduced to the extent that realistic pricing can occur…: provided further,',
770:'that the under secretary report to the committees on appropriations of the senate and house of representatives in writing, on',
771:'a quarterly basis, the contracts which have obligated funds under such a fixed pricetype developmental contract.” pub. l. no. 100–202,',
772:'§ 8118, 101 stat. 1329, 132984 1987. the navy had entered into a $34.5 million fixedprice contract with american telephone',
773:'& telegraph at&t for technology to be included in an advanced submarine detecting sonar system. at&t performed, but at a',
774:'cost of $91 million. when navy refused to pay the amount in excess of the contract’s fixed price, at&t sued.',
775:'at&t pointed out, and navy conceded, that the under secretary for acquisitions had not satisfied the appropriation act’s preconditions on',
776:'use of the appropriated funds; at&t argued that the contract was, therefore, invalid and void ab initio. the court disagreed.',
777:'the court said that the language of the act “provides for legislative oversight and enforcement. the section does not create',
778:'a cause of action inviting private parties to enforce the provision in courts.” at&t, 307 f.3d at 1379. the court',
779:'emphasized the supervisory role of the legislative branch in ensuring compliance with policies imposed via appropriations act provisions, noting that',
780:'such provisions permit “the appropriate legislative committees to monitor compliance and, presumably, guarantee enforcement in the form of future reductions',
781:'in, or limitations on, appropriated funds.” id. at 1377. while congressional power of the purse is a very broad power,',
782:'courts have invalidated funding restrictions when the courts found that the restrictions violated some independent constitutional bar. for example, in',
783:'united states v. lovett, 328 u.s. 303 1946, the supreme court held an appropriation act restriction unconstitutional as a bill',
784:'of attainder. the rider in question was a prohibition on the payment of salary to certain named individuals rather than',
785:'a condition on the receipt of funds. in another case, a provision in the 1989 district of columbia appropriation act',
786:'prohibited the use of any funds appropriated by the act unless the district adopted legislation spelled out in the rider.',
787:'the provision was invalidated on first amendment grounds. clarke v. united states, 705 f. supp. 605 d.d.c. 1988, aff’d, 886',
788:'f.2d 404 d.c. cir. 1989, vacated en banc as moot, 915 f.2d 699 d.c. cir. 1990. page 17 gao04261sp appropriations',
789:'law—vol. i chapter 1 introduction the supreme court recognized the breadth of the power of the purse, and its limitations,',
790:'in south dakota v. dole, 483 u.s. 203 1987, a decision addressing congress’s use of its spending power to impose',
791:'conditions on the use of federal grants. the court noted that— “the power of congress to authorize expenditure of public',
792:'moneys for public purposes is not limited by the direct grants of legislative power found in the constitution. thus, objectives',
793:'not thought to be within article i’s enumerated legislative fields,… may nevertheless be attained through the use of the spending',
794:'power and the conditional grant of federal funds.” id. at 207. see also national endowment for the arts v. finley,',
795:'524 u.s. 569, 588 1998 “so long as legislation does not infringe on other constitutionally protected rights, congress has wide',
796:'latitude to set spending priorities.”. on the other hand, as the supreme court also noted in dole, “[t]he spending power',
797:'is of course not unlimited.” id. the courts have identified a number of limitations on it. in dole, the supreme',
798:'court listed what it referred to as four “general restrictions” established in previous cases: first, the exercise of the spending',
799:'power must be in pursuit of the general welfare. second, conditions imposed on the use of federal funds must be',
800:'reasonably related to the articulated goals. third, the intent of congress to impose conditions must be authoritative and unambiguous. fourth,',
801:'the action in question must not be prohibited by an independent constitutional bar. id. at 207–208. see also, e.g., nevada',
802:'v. skinner, 884 f.2d 445, 447–48 9th cir. 1989. after the dole court explained the application of the fourth restriction,',
803:'it added, “our decisions have [also] recognized that in some circumstances the financial inducement offered by congress might be so',
804:'coercive as to pass the point at which ‘pressure turns into compulsion.’” id. at 211, quoting steward machine co. v.',
805:'davis, 301 u.s. 548, 590 1937. some courts have understood this passage to constitute a “fifth” limitation on congressional spending',
806:'power. e.g., a.w. v. jersey city public schools, 341 f.3d 234, 241 3rd cir. 2003; kansas v. united states, 214',
807:'f.3d 1196, 1201 10th cir. 2000; litman v. george mason university, 186 f.3d 544, 552–53 4th cir. 1999. others have',
808:'simply seen it as an “additional” consideration. e.g., west virginia v. department of health & human services, 289 f.3d 281,',
809:'287 4th cir. 2002. see also james island public service district v. city of charleston, 249 f.3d 323, 327 4th',
810:'cir. 2001. page 18 gao04261sp appropriations law—vol. i chapter 1 introduction while the existence of this list might suggest otherwise,',
811:'there have actually been few decisions striking down federal statutory spending conditions.9 kansas v. united states, 214 f.3d 1196, 1201–1202,',
812:'n.6 10th cir. 2000. a recent example can be seen in , wherein a conditional provision contained in the annual',
813:'appropriations for the legal service corporation lsc since 1996 was struck down as inconsistent with the first amendment. this provision',
814:'prohibited lsc grantees from representing clients in efforts to amend or otherwise challenge existing welfare law. the supreme court found',
815:'this provision interfered with the free speech rights of clients represented by lscfunded attorneys.10 in addition to imposing restrictions in',
816:'appropriation acts, congress also exercises its spending power by imposing conditions in the legislation creating or modifying a program.11 an',
817:'example of a statutorily imposed spending condition can be seen in the provisions of the children’s internet protection act cipa,',
818:'pub. l. no. 106554, 114 stat. 2763, 2763a335 dec. 21, 2000. cipa barred public libraries from receiving federal assistance to',
819:'provide computer access to the internet unless they installed software to block obscenity and child pornography and prevent minors from',
820:'obtaining access to material harmful to them. cipa, § 1711. in united states v. american library ass’n, inc., 539 u.s.',
821:'194, 123 s. ct. 2297 2003, the supreme court upheld cipa’s condition as a legitimate exercise of congressional spending power.',
822:'among the challenges brought against the 9 in united states v. butler, 297 u.s. 1 1936, the supreme court struck',
823:'down a funding condition based on a narrow view of congress’s powers under the commerce clause—an approach to which the',
824:'court no longer subscribes. see, e.g., dole, 483 u.s. at 216–17 o’connor, j., dissenting. see also laurence h. tribe, american',
825:'constitutional law § 5b, at 836 3rd ed. 2000 “the supreme court has effectively ignored butler in judging the limits',
826:'of congressional spending power”. compare, in this regard, commonwealth of virginia v. riley, 106 f.3d 559 4th cir. 1997 en',
827:'banc; west virginia v. department of health & human services, supra; and california v. united states, 104 f.3d 1086, 1092',
828:'9th cir. 1997, on how often and under what circumstances the courts might be willing to invalidate spending conditions as',
829:'coercive. 10 similar challenges have been raised against restrictive federal regulations interpreting statutory spending conditions. e.g., rust v. sullivan, 500',
830:'u.s. 173 1991 statute barred funding programs that employ abortion as a method of family planning; court upheld implementing regulations',
831:'prohibiting doctors employed by federally funded family planning clinics from discussing abortion options with clinic patients. 11 cf., e.g., new',
832:'york v. united states, 505 u.s. 144, 166 1992 “our cases have identified a variety of methods, short of outright',
833:'coercion, by which congress may urge a state to adopt a legislative program consistent with federal interests.”. page 19 gao04261sp',
834:'appropriations law—vol. i chapter 1 introduction cipa condition was the claim that it constituted an impermissible coercion. the court rejected',
835:'that claim, explaining that cipa did not penalize libraries that chose not to install the software. rather, it simply precluded',
836:'the use of taxpayer funds to subsidize those libraries that chose not to install such software. id. at 2307–08. the',
837:'court also rejected claims that the condition infringed upon protected first amendment rights, noting that cipa expressly permitted libraries to',
838:'customize or even disable the operation of the software for research and other lawful purposes—at the request of an adult',
839:'user or, under certain circumstances, even at the request of a minor user. id. at 2306–07. citing dole, supra, the',
840:'court noted again that, so long as congress does not “induce” funding recipients to engage in activities that would themselves',
841:'be unconstitutional, “congress has wide latitude to attach conditions to the receipt of federal assistance in order to further its',
842:'policy objectives.” id. at 2303. for some additional recent cases upholding statutory funding conditions, see for example, kansas v. united',
843:'states, 214 f.3d 1196 10th cir. 2000 upholding the statutory requirement conditioning receipt of federal block grants used to provide',
844:'cash assistance and other supportive services to lowincome families on a state’s participation in and compliance with a federal child',
845:'support enforcement program; litman v. george mason university, supra state university’s receipt of federal funds was validly conditioned upon waiver',
846:'of the state’s eleventh amendment immunity from federal antidiscrimination lawsuits; and california v. united states, 104 f.3d 1086, 1092 9th',
847:'cir. 1997 acknowledging that although it originally agreed to the condition for receipt of federal medicaid funds on state provision',
848:'of emergency medical services to illegal aliens, california now viewed that condition as coerced because substantial increases in illegal immigration',
849:'left california with no choice but to remain in the program to prevent collapse of its medical system; the complaint',
850:'was dismissed for failure to state a claim upon which relief could be granted. page 110 gao04261sp appropriations law—vol. i',
851:'chapter 1 introduction it would appear safe to say that congress can, as long as it does not violate the',
852:'constitution, appropriate money for any purpose it chooses, from paying the valid obligations of the united states to what the',
853:'supreme court has termed “pure charity,”12 and can implement policy objectives by imposing conditions on the receipt or use of',
854:'the money.13 the constitution does not provide detailed instructions on how congress is to implement its appropriation power, but leaves',
855:'it to congress to do so by statute. congress has in fact done this, and continues to do it, in',
856:'two ways: through the annual budget and appropriations process and through a series of permanent “funding statutes.” as one court',
857:'has put it: “ [the appropriations clause] is not selfdefining and congress has plenary power to give meaning to the',
858:'provision. the congressionally chosen method of implementing the requirements of article i, section 9, clause 7 is to be found',
859:'in various statutory provisions.” harrington v. bush, 553 f.2d 190, 194–95 d.c. cir. 1977 footnote omitted. see also, e.g., walker',
860:'v. department of housing & urban development, 912 f.2d 819, 829 5th cir. 1990. there were few statutory funding controls',
861:'in the early years of the nation and abuses were commonplace. as early as 1809, one senator, citing a string',
862:'of abuses, introduced a resolution to look into ways to prevent the improper expenditure of public funds.14 in 1816 and',
863:'1817, john c. calhoun lamented the “great evil” of diverting public funds to uses other than those for which they',
864:'were appropriated.15 even as late as the postcivil war years, the situation saw little improvement. “funds were commingled. obligations were',
865:'made without appropriations. unexpended balances from prior years were used to augment current appropriations.”16 12 united states v. realty co.,',
866:'163 u.s. 427, 441 1896. 13 e.g., dole, 483 u.s. at 207; national endowment for the arts v. finley, 524',
867:'u.s. at 588 “so long as legislation does not infringe on other constitutionally protected rights, congress has wide latitude to',
868:'set spending priorities.”. 14 19 annals of cong. 347 1809 remarks of senator hillhouse. 15 gary l. hopkins & robert',
869:'m. nutt, the antideficiency act revised statutes 3679 and funding federal contracts: an analysis, 80 mil. l. rev. 51, 57',
870:'n.7 1978. 16 id. at 57. page 111 gao04261sp appropriations law—vol. i chapter 1 introduction the permanent funding statutes, found',
871:'mostly in title 31 of the united states code, are designed to combat these and other abuses. they did not',
872:'spring up overnight, but have evolved over the span of nearly more than two centuries. nevertheless, when viewed as a',
873:'whole, they form a logical pattern. we may regard them as pieces of a puzzle that fit together to form',
874:'the larger picture of how congress exercises its control “power of the purse.” some of the key statutory directives in',
875:'this scheme, each of which is discussed elsewhere in this publication, are: a statute will not be construed as making',
876:'an appropriation unless it expressly so states. 31 u.s.c. § 1301d. agencies may not spend, or commit themselves to spend,',
877:'in advance of or in excess of appropriations. 31 u.s.c. § 1341 antideficiency act. appropriations may be used only for',
878:'their intended purposes. 31 u.s.c. § 1301a “purpose statute”. appropriations made for a definite period of time may be used',
879:'only for expenses properly incurred during that time. 31 u.s.c. § 1502a “bona fide needs” statute. unless authorized by law,',
880:'an agency may not keep money it receives from sources other than congressional appropriations, but must deposit the money in',
881:'the treasury. 31 u.s.c. § 3302b “miscellaneous receipts” statute. the second part of article i, section 9, clause 7 of',
882:'the constitution requires that— “a regular statement and account of the receipts and expenditures of all public money shall be',
883:'published from time to time.” page 112 gao04261sp appropriations law—vol. i chapter 1 introduction implementation of this provision, as a',
884:'logical corollary of the appropriation power, is also wholly within the congressional province, and the courts have so held.17 washington',
885:'post co. v. united states department of state, 685 f.2d 698, 700 d.c. cir. 1982 “the plenary authority of congress',
886:'in this area will be respected”, vacated as moot, 464 u.s. 979 1983; united states v. richardson, 418 u.s. 166,',
887:'178 n.11 1974 “it is clear that congress has plenary power to exact any reporting and accounting it considers appropriate',
888:'in the public interest”; harrington v. bush, 553 f.2d at 195; hart’s case, 16 ct. cl. 459, 484 1880, aff’d,',
889:'hart v. united states, 118 u.s. 62 1886 “[a]uditing and accounting are but parts of a scheme for payment”. see',
890:'also b300192, n.10, nov. 13, 2002. the constitution mentions appropriations in only one other place. article i, section 8, clause',
891:'12 provides that congress shall have power to “raise and support armies, but no appropriation of money to that use',
892:'shall be for a longer term than two years.”18 the 2year limit in clause 12 has been strictly construed as',
893:'applying essentially to appropriations for personnel and for operations and maintenance and not to other military appropriations such as weapon',
894:'system procurement or military construction. see b114578, nov. 9, 1973; 40 op. att’y gen. 555 1948; 25 op. att’y gen.',
895:'105 1904. in any event, congress has traditionally made appropriations for military personnel and operations and maintenance on a fiscal',
896:'year basis. whenever one reflects upon the constitutional prerogatives of the legislature, it must be against the backdrop of a',
897:'central theme underlying much of federal fiscal law and policy—the natural antithesis of executive flexibility and congressional control. each objective',
898:'is valid and necessary, but it is impossible to simultaneously maximize both. either can be enhanced only at the expense',
899:'of the other. finding and maintaining a 17 thus, congress has delegated authority to the comptroller general to prescribe, after',
900:'consultation with the president and the secretary of the treasury, accounting principles and standards for the federal government. 31 u.s.c.',
901:'§ 3511. since 1991, gao has implemented this responsibility largely through the federal accounting standards advisory board fasab—a federal advisory',
902:'committee jointly created by the comptroller general, the secretary of the treasury, and the director of the office of management',
903:'and budget. for more information about fasab, check out fasab facts, http://www.fasab.gov/pdf/fasabf2.pdf. 18 see united states v. weiss, 36 m.j.',
904:'224, 237–38 c.m.a. 1992 discussing the rationale behind the 2year limitation. page 113 gao04261sp appropriations law—vol. i chapter 1 introduction',
905:'reasonable and proper balance is both the goal and the challenge of the legal process. c. historical perspective 1. evolution',
906:'of the budget and appropriations process 19 the first general appropriation act, passed by congress on september 29, 1789, appropriated',
907:'a total of $639,000 and illustrates what was once a relatively uncomplicated process. we quote it in full 1 stat.',
908:'95: “be it enacted by the senate and house of representatives of the united states of america in congress assembled,',
909:'that there be appropriated for the service of the present year, to be paid out of the monies which arise,',
910:'either from the requisitions heretofore made upon the several states, or from the duties on impost and tonnage, the following',
911:'sums, viz. a sum not exceeding two hundred and sixteen thousand dollars for defraying the expenses of the civil list,',
912:'under the late and present government; a sum not exceeding one hundred and thirtyseven thousand dollars for defraying the expenses',
913:'of the department of war; a sum not exceeding one hundred and ninety thousand dollars for discharging the warrants issued',
914:'by the late board of treasury, and remaining unsatisfied; and a sum not exceeding ninetysix thousand dollars for paying the',
915:'pensions to invalids.” as the size and scope of the federal government have grown, so has the complexity of the',
916:'appropriations process. in 1789, the house established the ways and means committee to report on revenues and spending, only to',
917:'disband it that same year following the creation of the treasury department. the house ways and means 19 for a',
918:'detailed discussion of the history of the budget and appropriations process, see louis fisher, the authorizationappropriation process in congress: formal',
919:'rules and informal practices, 29 cath. u. l. rev. 51, 53–59 1979. for a more current overview of the process,',
920:'see allen schick and felix lostracco, the federal budget: politics, policy, process the brookings institution press, 2000. page 114 gao04261sp',
921:'appropriations law—vol. i chapter 1 introduction committee was reestablished to function permanently in 1795 and was recognized as a standing',
922:'committee in 1802. on the senate side, the finance committee was established as a standing committee in 1816. up until',
923:'that time, the senate had referred appropriation measures to temporary select committees. by 1834, jurisdiction over all senate appropriation bills',
924:'was consolidated in the senate finance committee. in the midnineteenth century, a move was begun to restrict appropriation acts to',
925:'only those expenditures that had been previously authorized by law. the purpose was to avoid the delays caused when legislative',
926:'items or “riders” were attached to appropriation bills. rules were eventually passed by both houses of congress to require, in',
927:'general, prior legislative authorizations for the enactment of appropriations. it was during this same period that the concept of a',
928:'fiscal year separate and distinct from the calendar year came into existence.20 under the financial strains caused by the civil',
929:'war, appropriations committees first appeared in both the house and the senate, diminishing the jurisdiction of the ways and means',
930:'and finance committees, respectively. years later, the need for major reforms was again accentuated by the burdens of another war.',
931:'following world war i, congress passed the budget and accounting act of 1921, pub. l. no. 6713, 42 stat. 20',
932:'june 10, 1921. 20 prior to 1842, the government did not distinguish between fiscal year and calendar year. from 1842',
933:'to 1976, the government’s fiscal year ran from july 1 to the following june 30. in 1974, congress changed the',
934:'fiscal year to run, starting with fiscal year 1977, from october 1 to september 30. 31 u.s.c. § 1102. the',
935:'concept of a fiscal year has been termed an “absolute necessity.” sweet v. united states, 34 ct. cl. 377, 386',
936:'1899. see also bachelor v. united states, 8 ct. cl. 235, 238 1872 reasons for fixing a fiscal year are',
937:'“so obvious… that no one can fail to see their importance”. page 115 gao04261sp appropriations law—vol. i chapter 1 introduction',
938:'before 1921, departments and agencies generally made individual requests for appropriations. these submissions were compiled for congressional review in an',
939:'uncoordinated “book of estimates.” the budget and accounting act enhanced budgetary efficiency and aided in the performance of constitutional checks',
940:'and balances through the budget process. it required the president to submit a national budget each year and restricted the',
941:'authority of the agencies to present their own proposals. see 31 u.s.c. §§ 1104, 1105. with this centralization of authority',
942:'for the formulation of the executive branch budget in the president and the newly established bureau of the budget now',
943:'office of management and budget, congress also took steps to strengthen its oversight capability over fiscal matters by establishing the',
944:'general accounting office.21 the decades immediately following world war ii saw growth in both the size and the complexity of',
945:'the federal budget. it became apparent that the congressional role in the “budget and appropriations” process centered heavily on the',
946:'appropriations phase and placed too little emphasis on the budgetary phase. in other words, congress responded to the president’s spending',
947:'and revenue proposals only through the cumulative result of individual pieces of legislation reached through an agglomeration of separate actions.',
948:'congress did not look at the budget as a whole, nor did it examine or vote on overall spending or',
949:'revenues. there was no process by which congress could establish its own spending priorities. thus, the impetus for a congressional',
950:'budget process began in the early 1970s. it was not created in a single step; rather, it was created in',
951:'stages—and for the most part new pieces did not replace but were added to existing processes. as william g. dauster,',
952:'former chief counsel on the committee on the budget, put it: “[t]he law governing the budget process resembles nothing so',
953:'much as sediment. it has accumulated in several statutes, each layered upon the prior one… [t]his incremental growth has created',
954:'something of a legal nettle.” budget process law annotated, s. print no. 10222, at xxvii 1991. 21 a summary of',
955:'the changes brought about by the budget and accounting act, including a listing of amendments that have been made to',
956:'the act, may be found in national federation of federal employees v. cheney, 883 f.2d 1038, 1043–46 d.c. cir. 1989.',
957:'page 116 gao04261sp appropriations law—vol. i chapter 1 introduction the first major round of reforms came about with the congressional',
958:'budget and impoundment control act of 1974.22 titles i though ix of the act are referred to as the congressional',
959:'budget act of 1974, while title x is referred to as the impoundment control act of 1974. one of the',
960:'fundamental objectives of the congressional budget act of 1974 was to establish a process through which congress could systematically consider',
961:'the total federal budget and determine priorities for allocating budget resources. the design of programs and the allocation of spending',
962:'within each mission area would be left to the authorizing and appropriations committees. the focus was on overall fiscal policy',
963:'and an allocation across priorities.23 the statute made several major changes in the budget and appropriations process. for example: it',
964:'established a detailed calendar governing the various stages of the congressional budget and appropriations process. 2 u.s.c. § 631. it',
965:'provided for congressional review of the president’s budget, the establishment of target ceilings for federal expenditures through one or more',
966:'concurrent resolutions, and the evaluation of spending bills against these targets. 2 u.s.c. §§ 632–642. prior to this time, congress',
967:'had considered the president’s budget only in the context of individual appropriation bills. to implement the new process, the law',
968:'created budget committees in both the senate and the house, and a congressional budget office cbo. 2 u.s.c. § 601.',
969:'the law requires the cbo to prepare estimates of new budget authority, outlays, or revenue provided by bills or resolutions',
970:'reported from committees of either house, or estimates of the costs that the government would incur in carrying out the',
971:'provisions of the proposed legislation. 2 u.s.c. § 602. 22 pub. l. no. 93344, 88 stat. 297 july 12, 1974.',
972:'23 the second and more immediate motive for passage of the congressional budget act was the dispute in the early',
973:'1970s related to the impoundment by president nixon of billions of dollars of funds appropriated by congress. see committee on',
974:'the budget, united states senate, the congressional budget process, an explanation, s. print no. 10567 1998; h.r. rep. no. 931101,',
975:'at 4 1974; h.r. rep. no. 93658, at 19 1974. page 117 gao04261sp appropriations law—vol. i chapter 1 introduction prompted',
976:'by the growth of “backdoor spending,”24 it enhanced the role of the appropriations committees in reviewing proposals for contract authority,',
977:'borrowing authority, and mandatory entitlements. 2 u.s.c. § 651. the 1974 legislation also imposed limitations on the impounding of appropriated',
978:'funds by the executive branch. 2 u.s.c. §§ 681–688. the next piece of major legislation in the fiscal area was',
979:'the balanced budget and emergency deficit control act of 1985, known as the gramm rudmanhollings act grammrudman.25 it was enacted',
980:'to deal with a growing budget deficit excess of total outlays over total receipts for a given fiscal year. 2',
981:'u.s.c. § 6226. grammrudman established ‘‘maximum deficit amounts.’’ pub. l. no. 99177,§ 201a1. if the deficit exceeded these statutory limits,',
982:'the president was required to issue a sequester order a cancellation of budgetary resources that would reduce all nonexempt spending',
983:'by a uniform percentage. id. § 252. in the spring of 1990, it became clear that the deficit was going',
984:'to exceed grammrudman maximum deficit limits by a considerable amount. to respond to these large deficits, president george h.w. bush',
985:'and congressional leadership convened negotiations on the budget in may 1990. in november, the omnibus budget reconciliation act of 1990',
986:'was enacted, which represented the budget agreement negotiated between the bush administration and congress. pub. l. no. 101508, 104 stat.',
987:'1388 nov. 5, 1990. see s. print no. 105–67, supra. the omnibus budget reconciliation act of 1990 included the budget',
988:'enforcement act 1990 bea,26 which provided a major overhaul of the grammrudman procedures. the law established maximum adjustable deficit amounts',
989:'for each fiscal year through fiscal year 1995, but in effect, it 24 the term backdoor spending is a collective',
990:'designation for authority provided in legislation other than appropriation acts to obligate the government to make payments. the most common',
991:'forms of backdoor spending are borrowing authority, contract authority, and entitlement authority. see u.s. general accounting office, a glossary of',
992:'terms used in the federal budget process exposure draft, gao/afmd2.1.1 washington, d.c.: jan. 1993. from the perspective of the appropriations',
993:'committees, funding provided by these forms of authority causes their funding control to “sneak out” legislative “back doors.” 25 pub.',
994:'l. no. 99177, title ii, 99 stat. 1037, 1038 dec. 12, 1985. 26pub. l. no. 101508, title xiii, 104 stat.',
995:'at 1388573. page 118 gao04261sp appropriations law—vol. i chapter 1 introduction replaced the grammrudmanhollings system of deficit limits with two',
996:'different enforcement mechanisms. the 1990 bea established annual caps on spending controllable through the appropriations process discretionary spending and a',
997:'payasyougo requirement for spending controllable through substantive legislation outside of the appropriations process so called direct or mandatory spending and',
998:'revenue legislation. the two types of spending were subject to different rules. if discretionary appropriations were enacted that exceeded the',
999:'annual caps, the law provided mechanisms for making appropriate spending reductions, sequestrations of budget authority, similar to those provided for',
1000:'in gramm rudman. 2 u.s.c. § 903. for the second spending category, mandatory spending and receipts, the 1990 bea required',
1001:'that all legislation within a session of congress that increased mandatory spending or decreased receipts was to be fully offset',
1002:'or paid for by corresponding increases in receipts or decreases in spending so that it was deficit neutral. failure to',
1003:'obtain budget neutrality for mandatory spending would trigger an offsetting sequestration among nonexempt mandatory accounts. 2 u.s.c. § 902. this',
1004:'payasyougo requirement was referred to as paygo, and legislation dealing with mandatory spending or receipts was often referred to as',
1005:'paygo legislation. to determine compliance with the 1990 bea requirements, the act required the office of management and budget omb',
1006:'and cbo to estimate new budget authority and outlays provided by any new legislation through a process that came to',
1007:'be called “scorekeeping.” 2 u.s.c. §§ 901, 902. cbo would transmit its estimates to omb, which would report any discrepancies',
1008:'to both houses of congress. the 1990 bea, however, required that omb’s estimates be used to determine whether a sequestration',
1009:'was necessary. 2 u.s.c. §§ 902, 904. the statement of managers accompanying the conference report on the 1990 bea instructed',
1010:'the house and senate budget committees to work in consultation with omb and cbo to develop scorekeeping guidelines. h.r. rept.',
1011:'no. 101964, at 1172 1990. the guidelines are printed in omb circular a11, preparation, submission and execution of the budget,',
1012:'app. b july 25, 2003. in 1993, the discretionary spending limits and the paygo rules were extended through fiscal year',
1013:'1998. pub. l. no. 10366, 107 stat. 683 aug. 10, 1993. the 1997 budget enforcement act 1997 bea again extended',
1014:'the discretionary spending caps and the paygo rules through 2002. pub. l. no. 10533, title x, 111 stat. 251, 701',
1015:'aug. 5, 1997. although the overall discretionary spending caps expired in 2002, additional caps on page 119 gao04261sp appropriations law—vol.',
1016:'i chapter 1 introduction highway and mass transit spending established under the transportation equity act for the 21st century tea2127',
1017:'continued through 2003, and another set of caps on conservation spending,28 established as part of the fiscal year 2001 interior',
1018:'appropriations act,29 were set through 2006. in addition, the sequestration procedures were to apply through 2006 to the conservation category.',
1019:'however, pub. l. no. 107312, 116 stat. 2456 dec. 2, 2002 eliminated the paygo sequestration requirement. while most of the',
1020:'budget enforcement mechanisms in the 1990 bea have expired, omb uses the same scorekeeping rules developed for use with bea',
1021:'for purposes of budget execution. omb determines how much budget authority must be obligated for individual transactions. omb interprets the',
1022:'scorekeeping guidelines to determine the cost that should be recognized and recorded as an obligation at the time the agency',
1023:'signs a contract or enters into a lease. “when an agency signs a contract, budgetary resources to measure the government’s',
1024:'contribution to each of the terms of the contract are set aside obligated. the ‘total score’ refers to the total',
1025:'amount of resources the government must obligate set aside for a given project.” letter from franklin d. raines, director, office',
1026:'of management and budget, to the honorable william s. cohen, secretary of defense, re: scoring dod’s military housing privatization initiatives,',
1027:'june 25, 1997. in addition to the statutory spending caps, congress, in fiscal year 1994, began including overall limits on',
1028:'discretionary spending in the concurrent budget resolution that have become known as congressional caps. h.r. con. res. 64, 103rd cong.',
1029:'§ 12b 1993. congress established these caps to manage its internal budget process, while the bea statutory caps continued to',
1030:'govern for sequestration purposes. the congressional caps were enforceable in the senate by a point of order that prohibited the',
1031:'consideration of a budget resolution that exceeded the limits for that fiscal year the point of order could be waived',
1032:'or suspended by a threefifths 27 pub. l. no. 105178, 112 stat. 107 june 9, 1998. 28 the conservation spending',
1033:'category includes the acquisition, conservation, and maintenance of federal and nonfederal lands and resources, and payments in lieu of taxes.',
1034:'2 u.s.c. § 901. 29 pub. l. no. 106291, 114 stat. 922 oct. 11, 2000. page 120 gao04261sp appropriations law—vol.',
1035:'i chapter 1 introduction vote.30 although the statutory 1997 bea limits expired at the end of fiscal year 2002, congress',
1036:'continues to use the concurrent resolution on the budget to establish and enforce congressional budgetary limits. h.r. con. res. 95,',
1037:'108th cong. § 504 2003. 2. gao’s role in the process as the budget and appropriations process has evolved over',
1038:'the course of the twentieth century, gao’s role with respect to it has also evolved. title iii of the budget',
1039:'and accounting act of 1921,31 gao’s basic enabling statute, created two very different roles for the comptroller general and the',
1040:'new agency. first, he was to assume all the duties of the comptroller of the treasury and his six subordinate',
1041:'auditors, and to serve as the chief accounting officer of the government. to this end, the comptroller general was given',
1042:'the authority to settle all claims by and against the government.32 in 1995, congress transferred gao’s claim settlement authority to',
1043:'the executive branch.33 second, under the enabling statute the comptroller general was given the authority to settle the accounts of',
1044:'the u.s. government, which includes the authority to issue legal decisions.34 the issuance of legal decisions is discussed in section',
1045:'e of this chapter. 30 this point of order, established in the congressional budget and impoundment control act of 1974,',
1046:'as amended, applies only to the senate. 31 pub. l. no. 6713, 42 stat. 20 june 10, 1921. 32 budget',
1047:'and accounting act § 305, 31 u.s.c. § 3702a. 33 pub. l. no. 10453, 109 stat. 514 nov. 19, 1995',
1048:'and pub. l. no. 104316, 110 stat. 3826 oct. 19, 1996, transferred the comptroller general’s authority over claims and related',
1049:'functions to the director of the office of management and budget, who in turn delegated specific functions to the departments',
1050:'of defense and treasury, the general services administration, and the office of personnel management. for additional details, see b275605, mar.',
1051:'17, 1997. 34 31 u.s.c. § 3526a, also derived from § 305 of the budget and accounting act; 31 u.s.c.',
1052:'§ 3529. as a result of this authority, the comptroller general and gao were sometimes referred to as the “accounting',
1053:'officers of the government” in early legal decisions. see footnote 2 of this chapter. page 121 gao04261sp appropriations law—vol. i',
1054:'chapter 1 introduction the comptroller general was also directed to investigate the receipt, disbursement, and application of public funds, reporting',
1055:'the results to congress;35 and to make investigations and reports upon the request of either house of congress or of',
1056:'any congressional committee with jurisdiction over revenue, appropriations, or expenditures.36 he was also directed to supply such information to the',
1057:'president when requested by the president.37 the mandates in the 1921 legislation, together with a subsequent directive in the legislative',
1058:'reorganization act of 1946 to make expenditure analyses of executive branch agencies with reports to the cognizant congressional committees,38 have',
1059:'played a large part in preparing congress to consider the merits of the president’s annual budget submission. the accounting and',
1060:'auditing act of 1950 authorized the comptroller general to audit the financial transactions of most39 executive, legislative, and judicial agencies;40',
1061:'and to prescribe, in consultation with the president 35 budget and accounting act §§ 312a and c, 31 u.s.c. §§',
1062:'7121, 719c. 36 budget and accounting act § 312b, 31 u.s.c. §§ 7124 and 5. at about this same time,',
1063:'both the house and the senate consolidated jurisdiction over all appropriation bills in a single committee in each body. 37',
1064:'31 u.s.c. § 719f, derived from budget and accounting act § 312e. 38 pub. l. no. 79601, § 206, 60',
1065:'stat. 812, 837 aug. 2, 1946, 31 u.s.c. §§ 7123, 719e. 39 with certain exceptions, the audit authority and responsibility',
1066:'of the general accounting office extends to all activities, financial transactions, and accounts of the federal government. however, certain agencies',
1067:'and activities are not subject to audit by reason of specific statutory prohibitions and the type of funds involved. for',
1068:'example, prior to 1980, the comptroller general did not have the authority to audit expenditures approved without vouchers. enactment of',
1069:'pub. l. no. 96226, § 101, 94 stat. 311 apr. 3, 1980 provided the authority to the comptroller general to',
1070:'audit these unvouchered transactions; however, the comptroller general may only release the results of the audit to the president or',
1071:'head of the agency, or, if there is an unresolved discrepancy, to the senate committee on governmental affairs, the house',
1072:'committee on government reform, and the committees of congress having legislative or appropriation oversight of the expenditure. this law, however,',
1073:'does not provide gao with the authority to audit transactions of the central intelligence agency or certain other financial transactions',
1074:'involving specified sensitive matters exempted by the president. 31 u.s.c. § 3524. 40 pub. l. no. 81784, § 117a, 31',
1075:'u.s.c. § 3523a. page 122 gao04261sp appropriations law—vol. i chapter 1 introduction and the secretary of the treasury, accounting principles,',
1076:'standards, and requirements for the executive agencies suitable to their needs.41 the legislative reorganization act of 1970 expanded the focus',
1077:'of gao’s audit activities to include program evaluations as well as financial audits.42 the congressional budget and impoundment control act',
1078:'of 1974 gave gao a number of additional duties in the budgetary arena. it directs gao, in cooperation with treasury,',
1079:'the office of management and budget, and the congressional budget office, to “establish, maintain, and publish standard terms and classifications',
1080:'for fiscal, budget, and program information of the government, including information on fiscal policy, receipts, expenditures, programs, projects, activities, and',
1081:'functions.” agencies are to use these terms and classifications in providing information to congress.43 gao published this information in a',
1082:'glossary of terms used in the federal budget process exposure draft, gao/afmd2.1.1 washington, d.c.: jan. 1993. the law gives gao',
1083:'a variety of functions relating to obtaining, studying, and reporting to congress fiscal, budget, and program information.44 finally, it gives',
1084:'the comptroller general the responsibility to monitor and report to congress on all proposed impoundments of budget authority by the',
1085:'executive branch.45 41 id. § 112a, 31 u.s.c. § 3511a. for more information on accounting standards, see footnote 17 of',
1086:'this chapter. 42 pub. l. no. 91510, § 204, 84 stat. 1140, 1168 oct. 26, 1970, 31 u.s.c. § 717.',
1087:'43 31 u.s.c. §§ 1112c and d, derived from the congressional budget and impoundment control act of 1974, pub. l.',
1088:'no. 93344, § 801a, 88 stat. 297, 327 july 12, 1974. 44 31 u.s.c. §§ 1113b–e, also derived from pub.',
1089:'l. no. 93344, § 801a. gao is continually studying the budget process as part of its overall mission. for an',
1090:'overview of gao reform proposals, with references to related gao reports, see u.s. general accounting office, budget issues: budget enforcement',
1091:'compliance report, gao02794 washington, d.c.: june 14, 2002; budget process: extending budget controls, gao02682t washington, d.c.: apr. 25, 2002; studies',
1092:'of the budget deficit include longterm fiscal challenges, gao02467t washington, d.c.: feb. 27, 2002; and longterm budget issues: moving from',
1093:'balancing the budget to balancing fiscal risk, gao01385t washington, d.c.: feb. 26, 2001. 45 pub. l. no. 93344, §§ 1014b,',
1094:'1015, 2 u.s.c. §§ 685b, 686. page 123 gao04261sp appropriations law—vol. i chapter 1 introduction the federal managers’ financial integrity',
1095:'act of 198246 is a very brief law but one that has had substantial impact. it was intended to increase',
1096:'governmentwide emphasis on internal accounting and administrative controls. agencies are to establish internal accounting and administrative control systems in accordance',
1097:'with standards prescribed by the comptroller general see u.s. general accounting office, standards for internal control in the federal government,',
1098:'gao/aimd0021.3.1 washington, d.c.: nov. 9, 1999, conduct annual reviews of their systems in accordance with office of management and budget',
1099:'guidelines, and report the results of these reviews to the president and to congress. omb circular no. a123, management accountability',
1100:'and control june 21, 1995. the act has been beneficial in focusing management and employee attention on the importance of',
1101:'internal controls. more recently, however, congress enacted a number of statutes to provide a framework for performancebased management and accountability.47',
1102:'gao monitors, and issues governmentwide reports on, the implementation of these statutes. see, e.g., u.s. general accounting office, financial management:',
1103:'ffmia federal financial management improvement act implementation necessary to achieve accountability, gao0331 washington, d.c.: oct. 1, 2002; managing for results:',
1104:'status of the government performance and results act, gao/tggd95193 washington, d.c.: june 27, 1995. d. “life cycle” of an appropriation',
1105:'an appropriate subtitle for this section might be “phases of the budget and appropriations process.” an appropriation has phases roughly',
1106:'similar to the various stages in the existence of “man”—conception, birth, death, even an afterlife. the various phases in an',
1107:'appropriation’s “life cycle” may be identified as follows: executive budget formulation and transmittal, congressional action, 46 pub. l. no. 97255,',
1108:'96 stat. 814 sept. 8, 1982, codified at 31 u.s.c. §§ 3512c and d. 47 see, e.g., the chief financial',
1109:'officers act of 1990, pub. l. no. 101576, 104 stat. 2838 nov. 15, 1990; the government management reform act of',
1110:'1994, pub. l. no. 103356, 108 stat. 3410 oct. 13, 1994; the government performance and results act of 1993, pub.',
1111:'l. no. 10362, 107 stat. 285 aug. 3, 1993; and the federal financial management improvement act of 1996, pub. l.',
1112:'no. 104208, title viii, 110 stat. 3009, 3009389 sept. 30, 1996. page 124 gao04261sp appropriations law—vol. i chapter 1 introduction',
1113:'budget execution and control, audit and review, and account closing. 1. executive budget formulation and transmittal the first step in',
1114:'the life cycle of an appropriation is the long and exhaustive administrative process of budget preparation and review, a process',
1115:'that may well take place several years before the budget for a particular fiscal year is ready to be submitted',
1116:'to congress. the primary participants in the process at this stage are the agencies and individual organizational units, which review',
1117:'current operations, program objectives, and future plans, and the office of management and budget omb,48 which is charged with broad',
1118:'oversight, supervision, and responsibility for coordinating and formulating a consolidated budget submission. throughout this preparation period, there is a continuous',
1119:'exchange of information among the various federal agencies, omb, and the president, including revenue estimates and economic outlook projections from',
1120:'the treasury department, the council of economic advisers, the congressional budget office, and the departments of commerce and labor. the',
1121:'president’s budget request must be submitted to congress on or before the first monday in february of each year, for',
1122:'use during the following fiscal year. 2 u.s.c. § 631.49 numerous statutory provisions, the most important of which are 31',
1123:'u.s.c. §§ 1104–1109, prescribe the content and nature of the materials and justifications that must be submitted with the 48',
1124:'part 1 of reorganization plan no. 2 of 1970 84 stat. 2085, designated the former bureau of the budget as',
1125:'omb and transferred all the authority vested in the bureau and its director to the president. by executive order no.',
1126:'11541, july 1, 1970, the president in turn delegated that authority to the director of omb. omb’s primary functions include',
1127:'assistance to the president in the preparation of the budget and the formulation of the fiscal program of the government,',
1128:'supervision and control of the administration of the budget, centralized direction in executive branch financial management, and review of the',
1129:'organization and management of the executive branch. 49 section 1105a of title 31 of the united states code states the',
1130:'requirement for a presidential budget submission slightly different than 2 u.s.c. § 631: “on or after the first monday in',
1131:'january but not later than the first monday in february of each year, the president shall submit a budget of',
1132:'the united states government for the following fiscal year.” page 125 gao04261sp appropriations law—vol. i chapter 1 introduction president’s budget',
1133:'request. specific instructions and policy guidance are contained in omb circular no. a11, preparation, submission and execution of the budget',
1134:'july 25, 2003. 2. congressional action a. summary of congressional process in exercising the broad discretion granted by the constitution,',
1135:'congress can approve funding levels contained in the president’s budget request, increase or decrease those levels, eliminate proposals, or add',
1136:'programs not requested by the administration. in simpler times, appropriations were often made in the form of a single, consolidated',
1137:'appropriation act. the most recent regular consolidated appropriation act50 was the general appropriation act of 1951, pub. l. no. 759,',
1138:'64 stat. 595 sept. 6, 1950. since that time, appropriations have generally been made in a series of regular appropriation',
1139:'acts plus one or more supplemental appropriation acts. most regular appropriation acts are organized based on one or more major',
1140:'departments and a number of smaller agencies corresponding to the jurisdiction of appropriations subcommittees, although a few are based solely',
1141:'on function. an agency may receive funds under more than one appropriation act. the individual structures are of course subject',
1142:'to change over time. at the present time, there are 13 regular appropriation acts, as follows: departments of commerce, justice,',
1143:'state, the judiciary, and related agencies; department of defense; department of the interior and related agencies; departments of labor, health',
1144:'and human services, education, and related agencies; department of homeland security; 50 for a few years in the mid1980s, very',
1145:'few regular appropriation acts were passed, resulting in consolidated continuing resolutions for those years. page 126 gao04261sp appropriations law—vol. i',
1146:'chapter 1 introduction departments of transportation, treasury, and independent agencies; departments of veterans affairs, housing and urban development, and independent',
1147:'agencies; district of columbia; energy and water development; foreign operations, export financing, and related programs; legislative branch; military construction; and',
1148:'department of agriculture, rural development, food and drug administration, and related agencies. before considering individual appropriation measures, however, congress must,',
1149:'under the congressional budget act, first agree on governmentwide budget totals. a timetable for congressional action is set forth in',
1150:'2 u.s.c. § 631, with further detail in sections 632–656. key steps in that timetable are summarized below.51 first monday',
1151:'in february. on or before this date, the president submits to congress the administration’s budget request for the fiscal year',
1152:'to start the following october 1. the deadline under the 1974 budget act had been the first monday after january',
1153:'3.52 february 15. the congressional budget office submits to the house and senate budget committees its annual report required by',
1154:'2 u.s.c. § 602e. 51 some useful references discussing the congressional budget process are: u.s. general accounting office, budget process:',
1155:'evolution and challenges, gao/taimd96129 july 11, 1996; committee on the budget, united states senate, the congressional budget process, an explanation,',
1156:'s. print no. 10567 revised dec. 1998; and library of congress, congressional research service, no. rs20358, overview of the congressional',
1157:'budget process july 23, 2003. 52 the omnibus budget reconciliation act of 1990 amended section 1105a of title 31 of',
1158:'the united states code to require the president to submit a budget “[o]n or after the first monday in january',
1159:'but not later than the first monday in february of each year.” page 127 gao04261sp appropriations law—vol. i chapter 1',
1160:'introduction the report contains the congressional budget office’s analysis of fiscal policy and budget priorities. within 6 weeks after president',
1161:'submits a budget request, or at such time as may be requested by the committee on the budget. each congressional',
1162:'committee with legislative jurisdiction submits to the appropriate budget committee its views and estimates on spending and revenue levels for',
1163:'the following fiscal year on matters within its jurisdiction. 2 u.s.c. § 632d, as amended. the house and senate budget',
1164:'committees then hold hearings and prepare their respective versions of a concurrent resolution, which is intended to be the overall',
1165:'budget plan against which individual appropriation bills are to be evaluated. april 15. congress completes action on the concurrent resolution,',
1166:'which includes a breakdown of estimated new budget authority and outlays for each major budget function. 2 u.s.c. § 632a.',
1167:'the conference report on the concurrent resolution allocates the totals among individual committees. 2 u.s.c. § 633a. the resolution may',
1168:'also include “reconciliation directives”—directives to individual committees to recommend legislative changes in revenues or spending to meet the goals of',
1169:'the budget plan. 2 u.s.c. § 641a. june 10. house appropriations committee completes the process of reporting out the individual',
1170:'appropriation bills. june 15. congress completes action on any reconciliation legislation stemming from the concurrent resolution. june 30. house of',
1171:'representatives completes action on annual appropriation bills. of course, house of representative consideration of the individual appropriation bills will have',
1172:'begun several months earlier. the first step is for each subcommittee of the house appropriations committee to study appropriation requests',
1173:'and evaluate the performance of the agencies within its jurisdiction. typically, each subcommittee will conduct hearings at which federal officials',
1174:'give testimony concerning both the costs and achievements of the various programs administered by their agencies and provide detailed justifications',
1175:'for their funding requests. eventually, each subcommittee reports a single appropriation bill for consideration by the entire committee and then',
1176:'the full house membership. page 128 gao04261sp appropriations law—vol. i chapter 1 introduction as individual appropriation bills are passed by',
1177:'the house, they are sent to the senate. as in the house, each appropriation measure is first considered in subcommittee',
1178:'and then reported by the full appropriations committee to be voted upon by the full senate. in the event of',
1179:'variations in the senate and house versions of a particular appropriation bill, a conference committee, including representatives of both houses',
1180:'of congress, is formed. it is the function of the conference committee to resolve all differences, but the full house',
1181:'and senate in that order must also vote to approve the conference report. following either the senate’s passage of the',
1182:'house version of an appropriation measure, or the approval of a conference report by both bodies, the enrolled bill is',
1183:'then sent to the president for signature or veto. the congressional budget act envisions completion of the process by october',
1184:'1, the beginning of the new fiscal year. b. points of order a number of requirements relevant to an understanding',
1185:'of appropriations law and the legislative process are found in rules of the senate and the house of representatives. for',
1186:'example, rule xxi2, rules of the house of representatives, prohibits appropriations for objects not previously authorized by law.53 a similar',
1187:'but more limited prohibition exists in rule xvi, standing rules of the senate.54 other examples are the prohibition against including',
1188:'general legislation in appropriation acts55 senate rule xvi, house rule xxi, and the prohibition against consideration by a conference committee',
1189:'of matters not committed to it by either house senate rule xxviii, house rule xxii. the applicability of senate and',
1190:'house rules is exclusively within the province of the particular house.56 53 citations to the rules of the house are',
1191:'from the rules of the house of representatives, 108th congress, jan. 7, 2003. 54 citations to the senate rules are',
1192:'from the standing rules of the senate, s. doc. no. 10615, nov. 19, 1999 revised as of april 27, 2000.',
1193:'55 whether a given item is general legislation or merely a condition on the availability of an appropriation is frequently',
1194:'a difficult question. 56 the comptroller general will not render an opinion on these matters. e.g., b173832, aug. 1, 1975.',
1195:'page 129 gao04261sp appropriations law—vol. i chapter 1 introduction in addition, rather than expressly prohibiting a given item, legislation may',
1196:'provide that it shall not be in order for the senate or house to consider a bill or resolution containing',
1197:'that item. an important example from the congressional budget act of 197457 is 2 u.s.c. § 651a, which provides that',
1198:'it shall not be in order for either house to consider any bill, resolution, or amendment containing certain types of',
1199:'new spending authority, such as contract authority, unless that bill, resolution, or amendment also provides that the new authority is',
1200:'to be effective for any fiscal year only to the extent provided in appropriation acts. the effect of these rules',
1201:'and of statutes like 2 u.s.c. § 651a is to subject the noncomplying bill to a “point of order.” a',
1202:'point of order is a procedural objection raised on the house or senate floor or in committees by a member',
1203:'alleging a departure from a rule or statute governing the conduct of business. see u.s. general accounting office, a glossary',
1204:'of terms used in the federal budget process exposure draft, gao/afmd2.1.1 washington, d.c.: jan. 1993. it differs from an absolute',
1205:'prohibition in that a it is always possible that no one will raise it and b if raised, it may',
1206:'or may not be sustained. also, some laws, like the congressional budget act, authorize points of order to be raised,',
1207:'and some measures may be considered under special resolutions waiving points of order.58 if a point of order is raised',
1208:'and sustained, the offending provision is effectively killed and may be revived only if it is amended to cure the',
1209:'noncompliance. the potential effect of a rule or statute subjecting a provision to a point of order is limited to',
1210:'the preenactment stage. if a point of order is not raised, or is raised and not sustained, the provision, if',
1211:'enacted, is no less valid. to restate, a rule or statute subjecting a given provision to a point of order',
1212:'has no effect or application once the legislation or appropriation has been enacted. 65 comp. gen. 524, 527 1986; 57',
1213:'comp. gen. 34 1977; 34 comp. gen. 278 1954; b173832, supra; b123469, apr. 14, 1955; b87612, july 26, 1949. 57',
1214:'pub. l. no. 93344, 88 stat. 297 july 12, 1974. 58 usually, a point of order may be waived by',
1215:'a simple majority vote. see gao/afmd2.1.1. however, in the senate, waiver of some points of order requires a threefifths vote.',
1216:'see congressional research service, no. 97865, supra. for example, waiver of the prohibition against consideration of nongermane amendments to budget',
1217:'resolutions requires a three fifths vote of all members of the senate. pub. l. no. 93344, § 305b2. page 130',
1218:'gao04261sp appropriations law—vol. i chapter 1 introduction 3. budget execution and control a. in general the body of enacted appropriation',
1219:'acts for a fiscal year, as amplified by legislative history and the relevant budget submissions, becomes the government’s financial plan',
1220:'for that fiscal year. the “execution and control” phase refers generally to the period of time during which the budget',
1221:'authority made available by the appropriation acts remains available for obligation. an agency’s task during this phase is to spend',
1222:'the money congress has given it to carry out the objectives of its program legislation. the office of management and',
1223:'budget apportions or distributes budgeted amounts to the executive branch agencies, thereby making funds in appropriation accounts administered by the',
1224:'treasury department available for obligation. 31 u.s.c. §§ 1511–1516. the apportionment system through which budget authority is distributed by time',
1225:'periods usually quarterly or by activities is intended to achieve an effective and orderly use of available budget authority, and',
1226:'to reduce the need for supplemental or deficiency appropriations. each agency then makes allotments pursuant to the omb apportionments or',
1227:'other statutory authority. 31 u.s.c. §§ 1513d, 1514. an allotment is a delegation of authority to agency officials that allows',
1228:'them to incur obligations within the scope and terms of the delegation.59 these concepts will be discussed further in chapter',
1229:'6. further detail on the budget execution phase may also be found in u.s. general accounting office, a glossary of',
1230:'terms used in the federal budget process exposure draft, gao/afmd2.1.1 washington, d.c.: jan. 1993, and omb circular no. a11, preparation,',
1231:'submission and execution of the budget, pt. 4, instructions on budget execution july 25, 2003. in addition, omb exercises a',
1232:'leadership role in executive branch financial management. this role was strengthened and given a statutory foundation by the chief financial',
1233:'officers act of 1990, pub. l. no. 101576, 104 stat. 2838 nov. 15, 1990. the chief financial officers act also',
1234:'enacted a new 31 u.s.c. ch. 9, which establishes a chief financial officer in the cabinet departments and several other',
1235:'executive branch agencies to work with 59 note the distinction in terminology: congress appropriates, omb apportions, and the receiving agency',
1236:'allots or allocates within the apportionment. page 131 gao04261sp appropriations law—vol. i chapter 1 introduction omb and to develop and',
1237:'oversee financial management plans, programs, and activities within the agency. b. impoundment while an agency’s basic mission is to carry',
1238:'out its programs with the funds congress has appropriated, there is also the possibility that, for a variety of reasons,',
1239:'the full amount appropriated by congress will not be expended or obligated by the administration. under the impoundment control act',
1240:'of 1974, an impoundment is an action or inaction by an officer or employee of the united states that delays',
1241:'or precludes the obligation or expenditure of budget authority provided by congress. 2 u.s.c. §§ 6821, 683.60 the act applies',
1242:'to “salaries and expenses” appropriations as well as program appropriations. 64 comp. gen. 370, 375–76 1985. there are two types',
1243:'of impoundment actions—deferrals and rescission proposals. a deferral is a postponement of budget authority in the sense that an agency',
1244:'temporarily withholds or delays obligation or expenditure. the president is required to submit a special message to congress reporting any',
1245:'deferral of budget authority. deferrals are authorized only to provide for contingencies, to achieve savings made possible by changes in',
1246:'requirements or greater efficiency of operations, or as otherwise specifically provided by law.61 a deferral may not be proposed for',
1247:'a period beyond the end of the fiscal year in which the special message reporting it is transmitted, although, for',
1248:'multiple year funds, nothing prevents a new deferral message covering the same funds in the following fiscal year. 2 u.s.c.',
1249:'§§ 6821, 684.62 60 for a detailed discussion of impoundment before the 1974 legislation, see b135564, july 26, 1973. 61',
1250:'these requirements are repeated in 31 u.s.c. § 1512c, which prescribes conditions for establishing reserves through the apportionment process. the',
1251:'president’s deferral authority under the impoundment control act thus mirrors his authority to establish reserves under the antideficiency act. in',
1252:'other words, deferrals are authorized only in those situations in which reserves are authorized under the antideficiency act. u.s. general',
1253:'accounting office, impoundment control: president’s third special impoundment message for fy 1990, gao/ogc904 washington, d.c.: mar. 6, 1990. deferrals for',
1254:'policy reasons are not authorized. 2 u.s.c. § 684b. 62 under the original 1974 legislation, a deferral could be overturned',
1255:'by the passage of an impoundment resolution by either the house or the senate. this “legislative veto” provision was found',
1256:'unconstitutional in city of new haven v. united states, 809 f.2d 900 d.c. cir. 1987, and the statute was subsequently',
1257:'amended to remove it. see pub. l. no. 100119, § 206, 101 stat. 754 sept. 29, 1987, codified at 2',
1258:'u.s.c. § 684b. congress may, of course, enact legislation disapproving a deferral and requiring that the deferred funds be made',
1259:'available for obligation. page 132 gao04261sp appropriations law—vol. i chapter 1 introduction a rescission involves the cancellation of budget authority',
1260:'previously provided by congress before that authority would otherwise expire, and can be accomplished only through legislation. the president must',
1261:'advise congress of any proposed rescissions, again in a special message. the president is authorized to withhold budget authority that',
1262:'is the subject of a rescission proposal for a period of 45 days of continuous session following receipt of the',
1263:'proposal. unless congress acts to approve the proposed rescission within that time, the budget authority must be made available for',
1264:'obligation. 2 u.s.c. §§ 6823, 683, 688.63 the impoundment control act requires the comptroller general to monitor the performance of',
1265:'the executive branch in reporting proposed impoundments to congress. a copy of each special message reporting a proposed deferral or',
1266:'rescission must be delivered to the comptroller general, who then must review each such message and present his views to',
1267:'the senate and house of representatives. 2 u.s.c. § 685b. if the comptroller general finds that the executive branch has',
1268:'established a reserve or deferred budget authority and failed to transmit the required special message to congress, the comptroller general',
1269:'so reports to congress. 2 u.s.c. § 686a; u.s. general accounting office, impoundment control: deferrals of budget authority in gsa,',
1270:'gao/ogc9417 washington, d.c.: nov. 5, 1993 unreported impoundment of general service administration funds; impoundment control: comments on unreported impoundment of',
1271:'dod budget authority, gao/ogc9211 washington, d.c.: june 3, 1992 unreported impoundment of v22 osprey funds. the comptroller general also reports',
1272:'to congress on any special message transmitted by the executive branch that has incorrectly classified a deferral or a rescission.',
1273:'2 u.s.c. § 686b. gao will construe a deferral as a de facto rescission if the timing of the proposed',
1274:'deferral is such that “funds could be expected with reasonable certainty to lapse before they 63 in 1996, the congress',
1275:'enacted the line item veto act, pub. l. no. 104130, 110 stat. 1200 apr. 9, 1996, which was codified at',
1276:'2 u.s.c. §§ 691–692. the line item veto act veto act gave the president the power to “cancel in whole”',
1277:'three types of provisions already enacted into law: 1 any dollar amount of discretionary budget authority, 2 any item of',
1278:'new direct spending, or 3 any limited tax benefit. the veto act imposed procedures for the president to follow whenever',
1279:'he exercised this cancellation authority. the veto act also provided for expedited congressional consideration of bills introduced to disapprove the',
1280:'cancellations. in clinton v. city of new york, 524 u.s. 417 1998, the supreme court held that because the veto',
1281:'act established cancellation procedures that authorized the president, by canceling already enacted provisions of law, “to create a different law—one',
1282:'whose text was not voted on by either house of congress or presented to the president for signature,” it violated',
1283:'the presentment clause u.s. const. art. i, § 7 and thus was unconstitutional. id. at 448. page 133 gao04261sp appropriations',
1284:'law—vol. i chapter 1 introduction could be obligated, or would have to be obligated imprudently to avoid that consequence.” 54',
1285:'comp. gen. 453, 462 1974. if, under the impoundment control act, the executive branch is required to make budget authority',
1286:'available for obligation if, for example, congress does not pass a rescission bill and fails to do so, the comptroller',
1287:'general is authorized to bring a civil action in the u.s. district court for the district of columbia to require',
1288:'that the budget authority be made available. 2 u.s.c. § 687. the expiration of budget authority or delays in obligating',
1289:'it resulting from ineffective or unwise program administration are not regarded as impoundments unless accompanied by or derived from an',
1290:'intention to withhold the budget authority. b229326, aug. 29, 1989. similarly, an improper obligation, although it may violate several other',
1291:'statutes, is generally not an impoundment. 64 comp. gen. 359 1985. there is also a distinction between deferrals, which must',
1292:'be reported, and “programmatic” delays, which are not impoundments and are not reportable under the impoundment control act. a programmatic',
1293:'delay is one in which operational factors unavoidably impede the obligation of budget authority, notwithstanding the agencys reasonable and good',
1294:'faith efforts to implement the program. b290659, july 24, 2002; u.s. general accounting office, impoundment control: deferral of dod budget',
1295:'authority not reported, gao/ogc918 washington, d.c.: may 7, 1991; impoundment control: deferrals of budget authority for military construction not reported,',
1296:'gao/ogc913 washington, d.c.: feb. 5, 1991. since intent is a relevant factor, the determination requires a caseby case evaluation of',
1297:'the agency’s justification in light of all of the surrounding circumstances. a programmatic delay may become a reportable deferral if',
1298:'the programmatic basis ceases to exist. delays resulting from the following factors may be programmatic, depending on the facts and',
1299:'circumstances involved: conditions on availability for using funds not met b290659, supra; contract delays due to shipbuilding design modification, verification,',
1300:'or changes in scope gao/ogc904; uncertainty as to the amount of budget authority that will ultimately be available for the',
1301:'program b203057, sept. 15, 1981; b207374, july 20, page 134 gao04261sp appropriations law—vol. i chapter 1 introduction 1982, noting that',
1302:'the uncertainty is particularly relevant when it “arises in the context of continuing resolution funding, where congress has not yet',
1303:'spoken definitively”; time required to set up the program or to comply with statutory conditions on obligating the funds b96983,',
1304:'b225110, sept. 3, 1987; compliance with congressional committee directives b221412, feb. 12, 1986; delay in receiving a contract proposal requested',
1305:'from contemplated sole source awardee b115398, feb. 6, 1978; historically low loan application level b115398, sept. 28, 1976; late receipt',
1306:'of complete loan applications b195437.3, feb. 5, 1988; delay in awarding grants pending issuance of necessary regulations b171630, may 10,',
1307:'1976; and administrative determination of allowability and accuracy of claims for grant payments b115398, oct. 16, 1975. where the department',
1308:'of defense withheld military construction funds to improve program efficiency, not because of an unavoidable delay, and the department did',
1309:'not take the necessary steps to implement the program while funds were temporarily unobligated, the withholding was an impoundment, not',
1310:'a programmatic delay. b241514.2, feb. 5, 1991. 4. audit and review a. basic responsibilities every federal department or agency has',
1311:'the initial and fundamental responsibility to ensure that its application of public funds adheres to the terms of the pertinent',
1312:'authorization and appropriation acts, as well as any other relevant statutory provisions. this responsibility—enhanced by the enactment of the federal',
1313:'managers’ financial integrity act and the creation of an inspector general in many agencies—includes establishing and maintaining appropriate accounting and',
1314:'internal controls, one of which is an internal audit program. ensuring the legality of proposed payments is also, under 31',
1315:'u.s.c. § 3528, one of the basic responsibilities of page 135 gao04261sp appropriations law—vol. i chapter 1 introduction agency certifying',
1316:'officers. the chief financial officers act of 1990 pub. l. no. 101576, §§ 303, 304, 104 stat. 2838, 2849–53 nov.',
1317:'15, 1990, codified at 31 u.s.c. § 3515 and §§ 3521e–h provides for the preparation and audit of financial statements',
1318:'for those agencies required to establish chief financial officers. in addition, the secretary of the treasury, in coordination with the',
1319:'director of the office of management and budget, is required to annually prepare and submit to the president and congress',
1320:'a financial statement for the executive branch of the government that has been audited by gao. 31 u.s.c. § 331e.',
1321:'gao also regularly audits federal programs under the various authorities that we summarize in section c.2 of this chapter. b.',
1322:'gao recommendations and matters for consideration in carrying out its various responsibilities to examine the financial, management, and program activities',
1323:'of federal agencies, and to evaluate the efficiency, effectiveness, and economy of agency operations, gao reports to congress both objective',
1324:'findings and recommendations for improvement. recommendations are addressed to agency heads for action that the agency is authorized to take',
1325:'under existing law. matters for consideration are addressed to congress. under section 236 of the legislative reorganization act of 1970,',
1326:'31 u.s.c. § 720b, whenever gao issues a report that contains recommendations to the head of a federal agency, the',
1327:'agency must submit a written statement of the actions taken with respect to the recommendations to 1 the senate committee',
1328:'on governmental affairs and the house committee on government reform, not later than 60 days after the date of the',
1329:'report and 2 the senate and house appropriations committees in connection with the agency’s first request for appropriations submitted more',
1330:'than 60 days after the date of the report. as gao pointed out in a letter to a private inquirer',
1331:'b207783, apr. 1, 1983, nondecision letter, the law does not require the agency to comply with the recommendation, merely to',
1332:'report on the “actions taken,” which can range from full compliance to zero. the theory is that, if the agency',
1333:'disagrees with the gao recommendation, congress will have both positions so that it can then take whatever action it might',
1334:'deem appropriate. the term “agency” for purposes of 31 u.s.c. § 720 is broadly defined to include any department, agency,',
1335:'or instrumentality of the u.s. government, including wholly owned but not mixedownership government corporations, or the district of columbia government.',
1336:'31 u.s.c. § 720a. see also b114831o.m., july 28, 1975. page 136 gao04261sp appropriations law—vol. i chapter 1 introduction 5.',
1337:'account closing continuing our “life cycle” analogy, an appropriation “dies” in a sense at the end of its period of',
1338:'obligational availability. there is, however, an afterlife to the extent of any unexpended balances. unexpended balances, both obligated and unobligated,',
1339:'retain a limited availability for five fiscal years following expiration of the period for which the source appropriation was made.',
1340:'at midnight on the last day of an appropriation’s period of availability, the appropriation account expires and is no longer',
1341:'available for incurring new obligations. the expired appropriation remains available for 5 years for the purpose of paying obligations incurred',
1342:'prior to the account’s expiration and adjusting obligations that were previously unrecorded or under recorded. 31 u.s.c. § 1553a. after',
1343:'5 years, the expired account is closed and the balances remaining are canceled. 31 u.s.c. § 1552a. these concepts are',
1344:'discussed in chapter 5. e. the role of the accounting officers: legal decisions 1. a capsule history since the early',
1345:'days of the republic, congress, in exercising its oversight of the public purse, has utilized administrative officials for the settlement',
1346:'of public accounts and the review of federal expenditures. a. accounting officers prior throughout most of the nineteenth century, the',
1347:'accounting officers64 to 1894 consisted of a series of comptrollers and auditors. starting in 1817 with two comptrollers and four',
1348:'auditors, the number increased until, for the second half of the century, there were three coequal comptrollers first comptroller, second',
1349:'comptroller, commissioner of customs and six auditors first auditor, second auditor, etc., all officials of the treasury department. the jurisdiction',
1350:'of the comptrollers and auditors was divided generally along departmental lines, with the auditors examining accounts and submitting their settlements',
1351:'to the appropriate comptroller. 64 see section a of this chapter, footnote 2. page 137 gao04261sp appropriations law—vol. i chapter',
1352:'1 introduction b. 1894–1921: comptroller of the treasury the practice of rendering written decisions goes back at least to 1817.',
1353:'however, very little of this material exists in published form. until sometime after the civil war, the decisions were handwritten.',
1354:'there are no published decisions of the first comptroller prior to the term of william lawrence 1880–85. lawrence published his',
1355:'decisions in a series of six annual volumes. after lawrence’s decisions, a gap of 9 years followed until first comptroller',
1356:'robert bowler published a single unnumbered volume of his 1893–94 decisions.65 the decisions of the second comptroller and the commissioner',
1357:'of customs were never published. however, volumes of digests of decisions of the second comptroller were published starting in 1852.',
1358:'the first volume, unnumbered, saw three cumulative editions, the latest issued in 1869 and including digests for the period 1817–69.',
1359:'three additional volumes designated volumes 2, 3, and 4 were published in 1884, 1893, and 1899 the latter being published',
1360:'several years after the office had ceased to exist, covering respectively, the periods 1869–84, 1884–93, and 1893–94.66 thus, material available',
1361:'in permanent form from this period consists of lawrence’s six volumes, bowler’s single volume, and four volumes of second comptroller',
1362:'digests. in 1894, congress enacted the socalled dockery act, actually a part of the general appropriation act for 1895 ch.',
1363:'174, 28 stat. 162, 205 july 31, 1894, which consolidated the functions of the first and second comptrollers and the',
1364:'commissioner of customs into the newly created comptroller of the treasury. the title was a reversion to one that had',
1365:'been used before 1817. the six auditors remained, with different titles, but their settlements no longer had to be automatically',
1366:'submitted to the comptroller. 65 citations to these are rarely encountered, and we have observed no consistent citation format, except',
1367:'that the first comptroller’s name is always included to prevent confusion with the later comptroller of the treasury series. example:',
1368:'5 lawrence, first comp. dec. 408 1884. 66 digests are numbered consecutively within each volume. citations should specify the digest',
1369:'number rather than the page number since several digests appear on each page. example: 4 dig. second comp. dec. ¶',
1370:'35 1893. without the text of the decisions themselves, the digests are primarily of historical interest. page 138 gao04261sp appropriations',
1371:'law—vol. i chapter 1 introduction the dockery act included a provision requiring the comptroller of the treasury to render decisions',
1372:'upon the request of an agency head or a disbursing officer. certifying officers did not exist back then. although this',
1373:'was to a large extent a codification of existing practice, it gave increased significance to the availability of the decisions.',
1374:'accordingly, the first comptroller of the treasury robert bowler, who had been first comptroller when the dockery act passed initiated',
1375:'the practice of publishing an annual volume of decisions “of such general character as will furnish precedents for the settlements',
1376:'of future accounts.” 1 comp. dec. iv 1896 preface. the decisions of the comptroller of the treasury series consists of',
1377:'27 volumes covering the period 1894–1921.67 comptroller of the treasury decisions not included in the annual volumes exist in bound',
1378:'“manuscript volumes,” which are now in the custody of the national archives, and are thus, unavailable as a practical matter.',
1379:'c. 1921 to the present time when the budget and accounting act of 1921 created the general accounting office, the',
1380:'offices of the comptroller of the treasury and the six auditors were abolished and their functions transferred to the comptroller',
1381:'general. among these functions was the issuance of legal decisions to agency officials concerning the availability and use of appropriated',
1382:'funds. thus, the decisions gao issues today reflect the continuing evolution of a body of administrative law on federal fiscal',
1383:'matters dating back to the nation’s infancy. we turn now to a brief description of this function under the stewardship',
1384:'of the comptroller general. 2. decisions of the comptroller general a. general information certain federal officials are entitled by statute',
1385:'to receive gao decisions. the comptroller general renders decisions in advance of payment when requested by disbursing officers, certifying officers,',
1386:'or the head of any 67 these are cited by volume and page number, respectively, and the year of the',
1387:'decision, using the abbreviation “comp. dec.” example: 19 comp. dec. 582 1913. there is also a hefty 2,497 pages volume,',
1388:'published in 1920, of digests of decisions appearing in volumes 1–26. page 139 gao04261sp appropriations law—vol. i chapter 1 introduction',
1389:'department or establishment of the federal government, who may be uncertain whether he or she has authority to make, or',
1390:'authorize the making of, particular payments. 31 u.s.c. § 3529. the comptroller general also renders, for example, decisions to heads',
1391:'of agency components, including general counsels and inspectors general. see, e.g., b291947, aug. 15, 2003; b285794, dec. 5, 2000. the',
1392:'comptroller general’s decisions are logically known as “advance decisions.” decisions are also provided to disbursing and certifying officers who request',
1393:'review of a settlement of their accounts. 31 u.s.c. §§ 3527, 3528b. in addition, the comptroller general may, in his',
1394:'discretion, render decisions or legal opinions to other individuals or organizations, both inside and outside the government. a decision regarding',
1395:'an account of the government is binding on the executive branch68 and on the comptroller general himself,69 but is not',
1396:'binding on a private party who, if dissatisfied, retains whatever recourse to the courts he would otherwise have had. the',
1397:'comptroller general has no power to enforce decisions. ultimately, agency officials who act contrary to comptroller general decisions may have',
1398:'to respond to congressional appropriations and program oversight committees. there is no specific procedure for requesting a decision from the',
1399:'comptroller general. a simple letter is usually sufficient. the request should, however, include all pertinent information or supporting material and',
1400:'should present any arguments the requestor wishes to have considered. gao will also receive requests for decisions by email. to',
1401:'submit a request 68 31 u.s.c. § 3526d “[o]n settling an account of the government, the balance certified by the',
1402:'comptroller general is conclusive on the executive branch of the government”; see united states ex rel. skinner & eddy corp.',
1403:'v. mccarl, 275 u.s. 1, 4 n.2 1927; st. louis, brownsville & mexico railway co. v. united states, 268 u.s.',
1404:'169, 174 1925; united states v. standard oil co. of california, 545 f.2d 624, 637–38 9th cir. 1976; burkley v.',
1405:'united states, 185 f.2d 267, 272 7th cir. 1950; united states ex rel. steacyschmidt manufacturing co. v. globe indemnity co.,',
1406:'66 f.2d 302, 303 3rd cir. 1933; united states ex rel. brookfield construction co. v. stewart, 234 f. supp. 94,',
1407:'99–100 d.d.c. 1964, aff’d 339 f.2d 753 d.c. cir. 1964; pettit v. united states, 488 f.2d 1026, 1031 ct. cl.',
1408:'1973; 54 comp. gen. 921 1975; 45 comp. gen. 335, 337 1965. comptroller general decisions on bid protests under the',
1409:'competition in contracting act, 31 u.s.c. §§ 3551–3556, are advisory only. see ameron, inc. v. corps of engineers, 809 f.2d',
1410:'979 3rd cir. 1986. 69 31 u.s.c. § 3526b “a decision of the comptroller general under section 3529 of this',
1411:'title is conclusive on the comptroller general when settling the account containing the payment.”. page 140 gao04261sp appropriations law—vol. i',
1412:'chapter 1 introduction by email, refer to the “legal products” page of gao’s web site, www.gao.gov, and follow the instructions',
1413:'provided therein. a request for an advance decision submitted by a certifying officer will usually arise from “a voucher presented…',
1414:'for certification.” 31 u.s.c. § 3529a2. at one time, gao insisted that the original voucher accompany the request and occasionally',
1415:'declined to render the decision if this was not done. see, e.g., 21 comp. gen. 1128 1942. the requirement was',
1416:'eliminated in b223608, dec. 19, 1988: “consistent with our current practice, submission of the original voucher need not accompany the',
1417:'request for an advance decision. accordingly, in the future, the original voucher should be retained in the appropriate finance office.',
1418:'a photocopy accompanying the request for decision will be sufficient. language to the contrary in prior decisions may be disregarded.”',
1419:'even if no voucher is submitted, gao will most likely render the decision notwithstanding the absence of a voucher if',
1420:'the question is of general interest and appears likely to recur. see, e.g., 55 comp. gen. 652 1976; 53 comp.',
1421:'gen. 429 1973; 53 comp. gen. 71 1973; 52 comp. gen. 83 1972. often, requests for decisions will require factual',
1422:'development, and gao will contact the agency as necessary to establish and document relevant facts. it is the usual practice',
1423:'of gao to obtain the legal positions and views of the agency or agencies involved in the request for a',
1424:'decision or opinion. an involved party or agency may request reconsideration of a decision. the standard applied is whether the',
1425:'request demonstrates error of fact or law e.g., b184062, july 6, 1976 or presents new information not considered in the',
1426:'earlier decision. b271838.2, may 23, 1997. while the comptroller general gives precedential weight to prior decisions,70 a decision may be',
1427:'modified or overruled by a subsequent decision. in overruling its decisions, 70 it is a general principle of administrative law',
1428:'that an agency or administrative board rendering administrative decisions should follow its own decisions or give a reasoned explanation for',
1429:'departure. see, e.g., hinson v. national transportation safety board, 57 f.3d 1144 d.c. cir. 1995; doubleday broadcasting co. v. fcc,',
1430:'655 f.2d 417, 422–23 d.c. cir. 1981. page 141 gao04261sp appropriations law—vol. i b. matters not considered chapter 1 introduction',
1431:'gao tries to follow the approach summarized by the comptroller of the treasury in a 1902 decision: “i regret exceedingly',
1432:'the necessity of overruling decisions of this office heretofore made for the guidance of heads of departments and the protection',
1433:'of paying officers, and fully appreciate that certainty in decisions is greatly to be desired in order that uniformity of',
1434:'practice may obtain in the expenditure of the public money, but when a decision is made not only wrong in',
1435:'principle but harmful in its workings, my pride of decision is not so strong that when my attention is directed',
1436:'to such decision i will not promptly overrule it. it is a very easy thing to be consistent, that is,',
1437:'to insist that the horse is 16 feet high, but not so easy to get right and keep right.” 8',
1438:'comp. dec. 695, 697 1902. gao also entertains informal inquiries, via telephone and email, regarding matters of appropriations law. to',
1439:'submit such an inquiry by email, refer to the “legal products” page of gao’s web site, www.gao.gov, and follow the',
1440:'instructions provided therein. informal opinions expressed by gao officers or employees may not represent the views of the comptroller general',
1441:'or gao and are in no way controlling on any subsequent formal or official determinations by the comptroller general. 56',
1442:'comp. gen. 768, 773–74 1977; 31 comp. gen. 613 1952; 29 comp. gen. 335 1950; 12 comp. gen. 207 1932;',
1443:'4 comp. gen. 1024 1925. there are a number of areas in which, as a matter of law or policy,',
1444:'the comptroller general will generally decline to render a decision. for example, as we discussed earlier in this chapter, effective',
1445:'june 30, 1996, congress transferred claims settlement authority under 31 u.s.c. § 3302 to the director of the office of',
1446:'management and budget omb. congress gave the director of omb the authority to delegate this function to such agency or',
1447:'agencies as he deemed appropriate. see, e.g., b278805, july 21, 1999. other areas where the comptroller general will decline to',
1448:'render decisions include questions concerning which the determination of another agency is by law “final and conclusive.” examples are determinations',
1449:'on the merits of a claim against another agency under the federal tort claims act page 142 gao04261sp appropriations law—vol.',
1450:'i chapter 1 introduction 28 u.s.c. § 2672 or the military personnel and civilian employees’ claims act of 1964 31',
1451:'u.s.c. § 3721. another example is a decision by the secretary of veterans affairs on a claim for veterans’ benefits',
1452:'38 u.s.c. § 511. see 56 comp. gen. 587, 591 1977; b266193, feb. 23, 1996; b226599.2, nov. 3, 1988 nondecision',
1453:'letter. in addition, gao has traditionally declined to render decisions in a number of areas that are specifically within the',
1454:'jurisdiction of some other agency and concerning which gao would not be in the position to make authoritative determinations, even',
1455:'though the other agency’s determination is not statutorily “final and conclusive.” thus, gao will not “decide” whether a given action',
1456:'violates a provision of the criminal code title 18 of the united states code since this is within the jurisdiction',
1457:'of the justice department and the courts.71 if the use of public funds is an element of the alleged violation,',
1458:'the extent of gao’s involvement will be to determine if appropriated funds were in fact used and to refer the',
1459:'matter to the justice department if deemed appropriate or if requested to do so.72 other examples of areas where gao',
1460:'has declined to render decisions are antitrust law,73 political activities of federal employees under the hatch act,74 and determinations as',
1461:'to what is or is not taxable under the internal revenue code.75 71 48 comp. gen. 24, 27 1968; 37',
1462:'comp. gen. 776 1958; 20 comp. gen. 488 1941; b215651, mar. 15, 1985. 72 an example here is 18 u.s.c.',
1463:'§ 1913, the antilobbying statute; see b284226.2, aug. 17, 2000. 73 59 comp. gen. 761 1980; 50 comp. gen. 648',
1464:'1971; 21 comp. gen. 56, 57 1941; b284110, n. 8, feb. 18, 2000; b218279, b218290, mar. 13, 1985; b190983, dec.',
1465:'21, 1979; b194584, aug. 9, 1979. 74 b218996, june 4, 1985; b165548, jan. 3, 1969. 75 b147153, nov. 21, 1961;',
1466:'b173783.127, feb. 7, 1975 nondecision letter. see also 26 u.s.c. § 6406. page 143 gao04261sp appropriations law—vol. i chapter 1',
1467:'introduction gao avoids opining on an issue that is the subject of current litigation, unless the court expresses an interest',
1468:'in receiving gao’s opinion.76 gao’s policy with respect to issues that are the subject of agency administrative proceedings is generally',
1469:'similar to its litigation policy. see 69 comp. gen. 134 1989 declining to render an opinion on the propriety of',
1470:'an attorney’s fee award being considered by the equal employment opportunity commission. see also b259632, june 12, 1995. another longstanding',
1471:'gao policy concerns the constitutionality of acts of congress. as an agent of congress, gao recognizes that it is neither',
1472:'our role nor our province to opine on or adjudicate the constitutionality of duly enacted statutes. such laws come to',
1473:'gao with a heavy presumption in favor of their constitutionality and, like the courts, gao will construe statutes narrowly to',
1474:'avoid constitutional issues.77 immigration & naturalization service v. st. cyr, 533 u.s. 289, 299, n.12 2001; b300192, nov. 13, 2002',
1475:'regarding a provision in the fiscal year 2003 continuing resolution, pub. l. no. 107229, § 117, 116 stat. 1465, 1468',
1476:'sept. 30, 2002, prohibiting the use of appropriations to acquire private sector printing and specifically prohibiting the use of appropriations',
1477:'to pay for printing the president’s budget other than through the government printing office: “given our authority to settle and',
1478:'audit the accounts of the government…, we will apply laws as we find them absent a controlling opinion that such',
1479:'laws are unconstitutional”. gao will, however, express 76 58 comp. gen. 282, 286 1979; b240908, sept. 11, 1990; b218900, july',
1480:'9, 1986; b217954, july 30, 1985; b203737, july 14, 1981; b179473, mar. 7, 1974; a36314, apr. 29, 1931. for examples',
1481:'of cases where gao’s opinion was requested by a court, see 56 comp. gen. 768 1977 and b186494, july 22,',
1482:'1976. also, under 28 u.s.c. § 2507, the united states court of federal claims may issue a “call” upon gao',
1483:'or any other agency for comments on a particular issue or for other information. 77 b215863, july 26, 1984; b210922.1,',
1484:'june 27, 1983; b114578, nov. 9, 1973; b157984, nov. 26, 1965; b124985, aug. 17, 1955; a23385, june 28, 1928; see',
1485:'also youngstown sheet & tube co. v. sawyer, 343 u.s. 579, 587 1952. except for matters perceived as involving conflicts',
1486:'between the prerogatives of the executive and legislative branches, the attorney general has expressed a similar policy. see, e.g., 39',
1487:'op. att’y gen. 11 1937; 20 op. off. legal counsel 214, 226 1996. in b300192, nov. 13, 2002, walter dellinger,',
1488:'the united states assistant attorney general is quoted as stating: “when the president’s obligation to execute laws enacted by congress',
1489:'is in tension with his responsibility to act in accordance with the constitution, questions arise that really go to the',
1490:'very heart of the system. and the president can decline to comply with the law, in our view, only where',
1491:'there is a judgment where the supreme court has resolved the issue.” id. at 6. page 144 gao04261sp appropriations law—vol.',
1492:'i chapter 1 introduction its opinion, upon the request of a member or committee of congress, on the constitutionality of',
1493:'a bill prior to enactment. e.g., b360241, mar. 18, 2003; b300192, supra; b228805, sept. 28, 1987. c. research aids between',
1494:'july 1921 and september 1994, decisions that the general counsel determined had wide applicability were published annually in hardbound volumes',
1495:'entitled decisions of the comptroller general. all other decisions, after gao had distributed copies to the requester and other interested',
1496:'parties, were filed at gao and available publicly upon request. there is no legal distinction between a decision published in',
1497:'decisions of the comptroller general and an unpublished decision. 28 comp. gen. 69 1948. since 1994, all decisions have been',
1498:'posted to the gao internet web site, www.gao.gov. the decisions are available at the gao web site only for a',
1499:'period of 60 days. after 60 days, the government printing office gpo posts gao’s decision to its gpo access wais',
1500:'system, an archival system. researchers can access the gpo system through gao’s web site. the gpo system includes gao decisions',
1501:'issued since january 1996. gao’s office of general counsel will assist researchers who have difficulty locating a copy of gao',
1502:'decisions. some of the computerized legal research systems e.g., lexis, westlaw carry comptroller general decisions. researchers might also find decisions',
1503:'available through the air force’s federal legal information through electronics flite web site. gao’s procurement decisions are published commercially, and',
1504:'some of the commercial “newsletter” services include summaries of other gao issuances, including appropriations law decisions. d. note on citations',
1505:'decisions of the comptroller general published in the decisions of the comptroller general volumes are cited by volume, page number',
1506:'on which the decision begins, and the year. for example: 31 comp. gen. 350 1952. unpublished decisions before 1994 and',
1507:'all decisions thereafter are cited by file number and date. for example: b193282, dec. 21, 1978. the present file numbering',
1508:'system “bnumbers” has been in use since january 1939. from 1924 through 1938, file numbers had an “a” prefix.78 78',
1509:'cases prior to 1924 were classified according to type into one of four categories: advance decision a.d. 1234, review decision',
1510:'review no. 2345, division memorandum d.m. 3456, or appeal appeal no. 4567. in addition, some of the earliest decisions have',
1511:'no file designation. these must be cited by reference to the “manuscript volume” in which the decision appears. these volumes',
1512:'are maintained by gao, containing the written products of the office of general counsel for a given month in chronological',
1513:'sequence. example: unpublished decision of september 1, 1921, 1 ms comp. gen. 712. page 145 gao04261sp appropriations law—vol. i chapter',
1514:'1 introduction 3. other relevant authorities a. gao materials gao expresses its positions in many forms. most of the gao',
1515:'materials cited in this publication are decisions of the comptroller general. while these constitute the most significant body of gao',
1516:'positions on legal issues, the editors have also included, as appropriate, citations to the following items: 1. legal opinions to',
1517:'congress—gao prepares legal opinions at the request of congressional committees or individual members of congress. congressional opinions are prepared in',
1518:'letter rather than decision format, but have the same weight and effect as decisions. the citation form is identical to',
1519:'that for decisions. as a practical matter, except where specifically identified in the text, the reader will not be able',
1520:'to distinguish between a decision and a congressional opinion based on the form of the citation. 2. office memoranda—legal questions',
1521:'are frequently presented by other divisions or offices within gao. the response is in the form of an internal memorandum,',
1522:'formerly signed by the comptroller general, but now, for the most part, signed by the general counsel or someone on',
1523:'the general counsel’s staff. the citation is the same as for an unpublished decision, except that the suffix “o.m.” office',
1524:'memorandum has traditionally been added. more recent material tends to omit the suffix, in which case our practice in this',
1525:'publication is to identify the citation as a memorandum to avoid confusion with decisions. office memoranda are usually not cited',
1526:'in decisions. technically, an office memorandum is not a decision of the comptroller general as provided in 31 u.s.c. §',
1527:'3529, does not have the same legal or precedential effect, and should never be cited as a decision. see, e.g.,',
1528:'a10786, may 23, 1927. instead, office memoranda represent the views of the general counsel or members of the general counsel’s',
1529:'staff. notwithstanding these limitations, we have included selected citations to gao office memoranda, particularly where they provide guidance in the',
1530:'absence of formal decisions on a given point or contain useful research or discussion. 3. audit reports—a gao audit report',
1531:'is cited by its title, date of issuance, and a numerical designation. up to the mid1970s, the same file numbering',
1532:'system was used as in decisions “bnumbers”. from the mid1970s until october 2000, the designation for an audit report page',
1533:'146 gao04261sp appropriations law—vol. i chapter 1 introduction consisted of the initials of the issuing division, the fiscal year, and',
1534:'the report number, although a “bnumber” was also assigned. now the designation includes only the fiscal year and the report',
1535:'number. reports are numbered sequentially within each fiscal year. several audit reports are cited throughout this publication either as authority',
1536:'for some legal proposition or to provide sources of additional information to supplement the discussion in the text. to prevent',
1537:'confusion stemming from different citation formats used over the years, our practice in this publication is to always identify an',
1538:'audit report as a “gao report” in the text, in addition to the citation. as required by 31 u.s.c. §',
1539:'719g, gao issues monthly and annual lists of reports. in addition, gao occasionally prepares bibliographies of reports and decisions in',
1540:'a given subject area food, land use, etc.. the lists and gao reports can be found at gao’s web site,',
1541:'www.gao.gov. in addition to the reports themselves, gao publishes a number of pamphlets and other documents relating to its audit',
1542:'function. see, e.g., u.s.general accounting office, government auditing standards, gao03673g washington, d.c.: june 2003 known as the “yellow book”. references',
1543:'to any of these will be fully described in the text where they occur. 4. nondecision letters—on occasion, gao may',
1544:'issue letters, signed by some subordinate official on the general counsel’s staff, usually to an individual or organization who has',
1545:'requested information or who has requested a legal opinion, but is not entitled by law to a formal decision. their',
1546:'purpose is basically to convey information rather than resolve a legal issue. several of these are cited in this publication,',
1547:'either because they offer a particularly clear statement of some policy or position, or to supplement the material found in',
1548:'the decisions. each is identified parenthetically. the citation form is otherwise identical to an unpublished decision. as with the office',
1549:'memoranda, these are not decisions of the comptroller general and do not have the same legal or precedential effect. 5.',
1550:'circular letters—a circular letter is a letter addressed simply to the “heads of federal departments and agencies” or to “federal',
1551:'certifying and disbursing officers.” circular letters, although not common, are used for a variety of purposes and may emanate from',
1552:'a particular division within gao or directly from the comptroller general. circular page 147 gao04261sp appropriations law—vol. i chapter 1',
1553:'introduction letters that announce significant changes in pertinent legal requirements or gao audit policy or procedures are occasionally cited in',
1554:'this publication. they are identified as such and often, but not always, bear file designations similar to unpublished decisions. see',
1555:'b275605, mar. 17, 1997 announcing changes resulting from the transfer of claims settlement and other related functions. 6. gao’s policy',
1556:'and procedures manual for guidance of federal agencies—originally published in 1957 as a large looseleaf volume, this was, for many',
1557:'years, the official medium through which the comptroller general issued accounting principles and standards and related material for the development',
1558:'of accounting systems and internal auditing programs, uniform procedures, and regulations governing gao’s relationship with other federal agencies and private',
1559:'parties. of the eight original titles of the volume, only three remain in effect. the title of particular relevance for',
1560:'federal appropriations law is title 7, “fiscal procedures.” it is an important complement to this manual. researchers can access title',
1561:'7 on gao’s web site, www.gao.gov. 7. glossary of terms used in the federal budget process exposure draft, gao/afmd2.1.1 jan.',
1562:'1993—this publication contains standard definitions of fiscal and budgetary terms. it is published by gao as required by 31 u.s.c.',
1563:'§ 1112c, and is updated periodically. definitions used throughout principles of federal appropriations law are based on the glossary unless',
1564:'otherwise noted. b. nongao materials as we have emphasized, the primary focus of this publication is the issuance of gao,',
1565:'particularly legal decisions and opinions. manifestly, however, various nongao authorities require inclusion. references to legislative materials should be readily recognizable.',
1566:'citations to the united states code are to the edition or its supplements current as of the time of publication,',
1567:'unless specified otherwise. we specify the year only when referring to an obsolete edition of the code. section numbers and',
1568:'even title numbers may change over the years as a result of amendments or recodifications. for convenience and we hope',
1569:'clarity, we have generally used current citations even though the referenced decision may have used an older obsolete citation. where',
1570:'the difference is significant, it will be noted in the text. page 148 gao04261sp appropriations law—vol. i chapter 1 introduction',
1571:'c. note on title 31 recodification we have also included relevant decisions and opinions of other administrative agencies, although our',
1572:'research in these areas has not been exhaustive. for example, we have included some relevant opinions of the attorney general.',
1573:'the attorney general renders legal opinions pursuant to various provisions of law. e.g., 28 u.s.c. §§ 511–513. there are two',
1574:'series of published opinions. those signed by the attorney general are called “formal opinions,” and are published in volumes entitled',
1575:'official opinions of the attorneys general of the united states advising the president and heads of departments in relation to',
1576:'their official duties cited “op. att’y gen.”. the series started in 1852 and now numbers 43 volumes. they are published',
1577:'at irregular intervals. the second series consists of selected opinions by the justice department’s office of legal counsel olc, which',
1578:'prepares and issues legal opinions under delegation from the attorney general. commencing in 1977, volumes 1–20 of the opinions of',
1579:'the office of legal counsel have thus far been published. logically enough, they are cited “op. off. legal counsel.” given',
1580:'the lengthy intervals in recent decades between volumes of the “formal” attorney general opinions, these are now included in the',
1581:'olc volumes as well. we have used a parallel citation format to identify this latter group. example: 43 op. att’y',
1582:'gen. 224, 4a op. off. legal counsel 16 1980. a treasury department publication cited a number of times is the',
1583:'treasury financial manual tfm, volume i. this, also issued in looseleaf form, is the treasury department’s detailed procedural guidance on',
1584:'fiscal matters central accounting and reporting, receipts, disbursements, etc.. the tfm is indispensable for finance personnel. many of the key',
1585:'statutes of general applicability that govern the use of appropriated funds are found in title 31 of the united states',
1586:'code u.s.c.. title 31 was recodified on september 13, 1982 pub. l. no. 97258, 96 stat. 877. a recodification is',
1587:'intended as a— “compilation, restatement, and revision of the general and permanent laws of the united states which conforms to',
1588:'the understood policy, intent, and purpose of the congress in the original enactments, with such amendments and corrections as will',
1589:'remove ambiguities, contradictions, and other imperfections both of substance and of form… .” page 149 gao04261sp appropriations law—vol. i chapter',
1590:'1 introduction 2 u.s.c. § 285b1. enactment of a recodification transforms the title into “positive law.” a recodified title is',
1591:'legal evidence of the law, and resorting to the statutes at large for evidentiary purposes is no longer necessary. the',
1592:'recodification of title 31 is essentially a restatement in updated form. it is not supposed to make any substantive change',
1593:'in the law. this point is made in the statute itself pub. l. no. 97258, § 4a, 96 stat. 1067,',
1594:'31 u.s.c. note preceding § 101 and in the accompanying report of the house judiciary committee h.r. rep. no. 97651,',
1595:'at 3 1982. in addition, the courts will not read a substantive change into a recodification in the absence of',
1596:'evidence that congress intended a substantive change. e.g., keene corp. v. united states, 508 u.s. 200, 209 1993; united states',
1597:'v. thompson, 319 f.2d 665, 669 2nd cir. 1963. page 150 gao04261sp appropriations law—vol. i chapter 2 the legal framework',
1598:'a. appropriations and related terminology . . . . . . . . . . . . . . 23',
1599:'1. introduction . . . . . . . . . . . . . . . . . .',
1600:'. . . . . . . . . . . . . . . . . . . .',
1601:'. . . . . . .23 2. concept and types of budget authority . . . . . .',
1602:'. . . . . . . . . . . . . . .23 a.appropriations . . . .',
1603:'. . . . . . . . . . . . . . . . . . . .',
1604:'. . . . . . . . . . . . . . . .24 b.contract authority . .',
1605:'. . . . . . . . . . . . . . . . . . . .',
1606:'. . . . . . . . . . . . . . .26 c.borrowing authority . . .',
1607:'. . . . . . . . . . . . . . . . . . . .',
1608:'. . . . . . . . . . . .27 d.monetary credits . . . . . .',
1609:'. . . . . . . . . . . . . . . . . . . .',
1610:'. . . . . . . . . . . .28 e. offsetting receipts . . . . .',
1611:'. . . . . . . . . . . . . . . . . . . .',
1612:'. . . . . . . . . . . .29 f. loan and loan guarantee authority . .',
1613:'. . . . . . . . . . . . . . . . . . .210 3.',
1614:'some related concepts . . . . . . . . . . . . . . . . .',
1615:'. . . . . . . . . . . . . . . . .212 a.spending authority .',
1616:'. . . . . . . . . . . . . . . . . . . .',
1617:'. . . . . . . . . . . . . .212 b.entitlement authority . . . .',
1618:'. . . . . . . . . . . . . . . . . . . .',
1619:'. . . . . . . . .213 4. types of appropriations . . . . . . .',
1620:'. . . . . . . . . . . . . . . . . . . .',
1621:'. . . . . .213 a. classification based on duration . . . . . . . . .',
1622:'. . . . . . . . . . . . . . .213 b. classification based on presence',
1623:'or absence of monetary limit . . . . . . . . . . . . . . .',
1624:'. . . . . . . . . . . . . . . . . . . .',
1625:'. . . . . . . . . . . . .214 c. classification based on permanency . .',
1626:'. . . . . . . . . . . . . . . . . . .214 d.',
1627:'classification based on availability for new obligations . . . 215 e.reappropriation . . . . . . . .',
1628:'. . . . . . . . . . . . . . . . . . . .',
1629:'. . . . . . . . . .215 b. some basic concepts . . . . . .',
1630:'. . . . . . . . . . . . . . . . . . . .',
1631:'. . . . . . 215 1. what constitutes an appropriation . . . . . . . .',
1632:'. . . . . . . . . . . . . . . .215 2. specific versus general',
1633:'appropriations . . . . . . . . . . . . . . . . . . .',
1634:'.221 a.general rule . . . . . . . . . . . . . . . . .',
1635:'. . . . . . . . . . . . . . . . . . . .',
1636:'. . . .221 b. two appropriations available for same purpose . . . . . . . . .',
1637:'. 223 3. transfer and reprogramming . . . . . . . . . . . . . .',
1638:'. . . . . . . . . . . . . . .224 a.transfer . . . .',
1639:'. . . . . . . . . . . . . . . . . . . .',
1640:'. . . . . . . . . . . . . . . . . . . .',
1641:'.224 b.reprogramming . . . . . . . . . . . . . . . . . .',
1642:'. . . . . . . . . . . . . . . . . . . .229',
1643:'4. general provisions: when construed as permanent legislation 233 c. relationship of appropriations to other types of legislation . .',
1644:'. . . . . . . . . . . . . . . . . . . .',
1645:'. . . . . . . . . . . . . . . . . . . .',
1646:'240 1. distinction between authorization and appropriation . . . . . . . . 240 2. specific problem areas',
1647:'and the resolution of conflicts . . . . . . . 242 a.introduction . . . . . .',
1648:'. . . . . . . . . . . . . . . . . . . .',
1649:'. . . . . . . . . . . . . . .242 b.variations in amount . .',
1650:'. . . . . . . . . . . . . . . . . . . .',
1651:'. . . . . . . . . . . .246 1 appropriation exceeds authorization . . . .',
1652:'. . . . . . . . . . . . 246 2 appropriation less than authorization . .',
1653:'. . . . . . . . . . . . . 247 3earmarks in authorization act . .',
1654:'. . . . . . . . . . . . . . . . . . . .',
1655:'250 c. variations in purpose . . . . . . . . . . . . . . .',
1656:'. . . . . . . . . . . . . . . . . . .251 d.period',
1657:'of availability . . . . . . . . . . . . . . . . . .',
1658:'. . . . . . . . . . . . . . . .252 e. authorization enacted after',
1659:'appropriation . . . . . . . . . . . . . . . 256 f. two statutes',
1660:'enacted on same day . . . . . . . . . . . . . . . .',
1661:'. . . . .259 g. ratification by appropriation . . . . . . . . . . .',
1662:'. . . . . . . . . . . . . . . .261 page 21 gao04261sp appropriations',
1663:'law—vol. i chapter 2 the legal framework h.repeal by implication . . . . . . . . . .',
1664:'. . . . . . . . . . . . . . . . . . . .',
1665:'. . .266 i. lack of authorization . . . . . . . . . . . . .',
1666:'. . . . . . . . . . . . . . . . . . . .269',
1667:'d. statutory interpretation: determining congressional intent . . . . . . . . . . . . . .',
1668:'. . . . . . . . . . . . . . . . . . . .',
1669:'. . . . . . . . . . . . . 271 1. the goal of statutory construction',
1670:'. . . . . . . . . . . . . . . . . . . .',
1671:'. . . .272 2. the “plain meaning” rule . . . . . . . . . . .',
1672:'. . . . . . . . . . . . . . . . . . . .',
1673:'.274 a.in general . . . . . . . . . . . . . . . . .',
1674:'. . . . . . . . . . . . . . . . . . . .',
1675:'. . . . . .274 b. the plain meaning rule versus legislative history . . . . . .',
1676:'. . . 276 3. the limits of literalism: errors in statutes and “absurd consequences” . . . . .',
1677:'. . . . . . . . . . . . . . . . . . . .',
1678:'. . . . . . . . . . . . . . . .278 a.errors in statutes .',
1679:'. . . . . . . . . . . . . . . . . . . .',
1680:'. . . . . . . . . . . . . . . .278 1drafting errors . .',
1681:'. . . . . . . . . . . . . . . . . . . .',
1682:'. . . . . . . . . . . . . 278 2errorin amount appropriated . . .',
1683:'. . . . . . . . . . . . . . . . . . . 280',
1684:'b.avoiding “absurd consequences” . . . . . . . . . . . . . . . . .',
1685:'. . . . . .280 4. statutory aids to construction . . . . . . . . .',
1686:'. . . . . . . . . . . . . . . . . . .283 a.',
1687:'definitions, effective dates, and severability clauses . . . . . . 283 b.the dictionary act . . . .',
1688:'. . . . . . . . . . . . . . . . . . . .',
1689:'. . . . . . . . . . . .283 c. effect of codification . . . .',
1690:'. . . . . . . . . . . . . . . . . . . .',
1691:'. . . . . . . . . .284 5. canons of statutory construction . . . . .',
1692:'. . . . . . . . . . . . . . . . . . . .285',
1693:'a.construe the statute as a whole . . . . . . . . . . . . . .',
1694:'. . . . . . . . . .285 b. give effect to all the language: no “surplusage” .',
1695:'. . . . . . . . . 287 c.apply the common meaning of words . . . .',
1696:'. . . . . . . . . . . . . . .289 d. give a common construction',
1697:'to the same or similar words 289 e. punctuation, grammar, titles, and preambles are relevant but not controlling . .',
1698:'. . . . . . . . . . . . . . . . . . . .',
1699:'. . . . . . . . . . . . .292 f. avoid constructions that pose constitutional problems',
1700:'. . . 294 6. legislative history . . . . . . . . . . . . .',
1701:'. . . . . . . . . . . . . . . . . . . .',
1702:'. . . . .296 a.uses and limitations . . . . . . . . . . . .',
1703:'. . . . . . . . . . . . . . . . . . . .',
1704:'. .296 b.components and their relative weight . . . . . . . . . . . . .',
1705:'. . . . .298 1committee reports . . . . . . . . . . . . .',
1706:'. . . . . . . . . . . . . . . . . . . 298',
1707:'2floor debates . . . . . . . . . . . . . . . . . .',
1708:'. . . . . . . . . . . . . . . . . 2100 3hearings .',
1709:'. . . . . . . . . . . . . . . . . . . .',
1710:'. . . . . . . . . . . . . . . . . . 2102 c.postenactment',
1711:'statements . . . . . . . . . . . . . . . . . . .',
1712:'. . . . . . . .2103 d.development of the statutory language . . . . . . .',
1713:'. . . . . . . . . .2105 7. presumptions and “clear statement” rules . . . .',
1714:'. . . . . . . . . . . . 2106 a.presumption in favor of judicial review .',
1715:'. . . . . . . . . . . . . . .2106 b. presumption against retroactivity .',
1716:'. . . . . . . . . . . . . . . . . . . .',
1717:'.2108 c.federalism presumptions . . . . . . . . . . . . . . . . .',
1718:'. . . . . . . . . . . .2111 d. presumption against waiver of sovereign immunity .',
1719:'. . . . . 2113 page 22 gao04261sp appropriations law—vol. i chapter 2 the legal framework a. appropriations and',
1720:'related terminology 1. introduction the reader will find it useful to have a basic understanding of certain appropriations law terminology',
1721:'that will be routinely encountered throughout this publication. some of our discussion will draw upon definitions that have been enacted',
1722:'into law for application in various budgetary contexts. other definitions are drawn from custom and usage in the budget and',
1723:'appropriations process, in conjunction with administrative and judicial decisions. in addition, 31 u.s.c. § 1112c, previously noted in chapter 1,',
1724:'requires the comptroller general, in cooperation with the treasury department, office of management and budget, and congressional budget office, to',
1725:'maintain and publish standard terms and classifications for “fiscal, budget, and program information,” giving particular consideration to the needs of',
1726:'the congressional budget, appropriations, and revenue committees. federal agencies are required by 31 u.s.c. § 1112d to use this standard',
1727:'terminology when providing information to congress. the terminology developed pursuant to this authority is published in a gao booklet entitled',
1728:'a glossary of terms used in the federal budget process exposure draft, gao/afmd2.1.1 washington, d.c.: jan. 1993 [hereinafter glossary]. unless',
1729:'otherwise noted, the terminology used throughout this publication is based on the glossary. 1 the following sections present some of',
1730:'the more important terminology in the budget and appropriations process. many other terms will be defined in the chapters that',
1731:'deal specifically with them. 2. concept and types of budget authority congress finances federal programs and activities by providing “budget',
1732:'authority.” budget authority is a general term referring to various forms of authority provided by law to enter into financial',
1733:'obligations that will result 1 the office of management and budget adopted these definitions in omb circular no. a11, preparation,',
1734:'submission and execution of the budget july 25, 2003. page 23 gao04261sp appropriations law—vol. i chapter 2 the legal framework',
1735:'in immediate or future outlays of government funds. as defined by the congressional budget act, “budget authority” includes: “i provisions',
1736:'of law that make funds available for obligation and expenditure other than borrowing authority, including the authority to obligate and',
1737:'expend the proceeds of offsetting receipts and collections; “ii borrowing authority, which means authority granted to a federal entity to',
1738:'borrow and obligate and expend the borrowed funds, including through the issuance of promissory notes or other monetary credits; “iii',
1739:'contract authority, which means the making of funds available for obligation but not for expenditure; and “iv offsetting receipts and',
1740:'collections as negative budget authority, and the reduction thereof as positive budget authority. “the term includes the cost for direct',
1741:'loan and loan guarantee programs, as those terms are defined by [the omnibus budget reconciliation act of 1990, pub. l.',
1742:'no. 101508, § 13201a].” 2 a. appropriations appropriations are the most common form of budget authority. as we have seen',
1743:'in chapter 1 in our discussion of the congressional “power of the purse,” the constitution prohibits the withdrawal of money',
1744:'from the treasury unless authorized in the form of an appropriation enacted by congress.3 thus, funds paid out of the',
1745:'united states treasury must be 2 section 32 of the congressional budget and impoundment control act of 1974, 2 u.s.c.',
1746:'§ 6222 and note, as amended by the omnibus budget reconciliation act of 1990, pub. l. no. 101508, §§ 13201b',
1747:'and 13211a, 104 stat. 1388, 1388614 and 1388620 nov. 5, 1990. prior to the congressional budget act, the term “obligational',
1748:'authority” was frequently used instead of budget authority. 3 the constitution does not specify precisely what assets comprise the “treasury”',
1749:'of the united states. an important statute in this regard is 31 u.s.c. § 3302b, discussed in detail in chapter',
1750:'6, which requires that, unless otherwise provided, a government agency must deposit any funds received from sources other than its',
1751:'appropriations in the general fund of the treasury, where they are then available to be appropriated as congress may see',
1752:'fit. page 24 gao04261sp appropriations law—vol. i chapter 2 the legal framework accounted for by charging them to an appropriation',
1753:'provided by or derived from an act of congress. the term “appropriation” may be defined as: “authority given to federal',
1754:'agencies to incur obligations and to make payments from treasury for specified purposes.”4 while other forms of budget authority may',
1755:'authorize the incurring of obligations, the authority to incur obligations by itself is not sufficient to authorize payments from the',
1756:'treasury. see, e.g., national ass’n of regional councils v. costle, 564 f.2d 583, 586 d.c. cir. 1977; new york airways,',
1757:'inc. v. united states, 369 f.2d 743 ct. cl. 1966. thus, at some point if obligations are paid, they are',
1758:'paid by and from an appropriation. section b.1 of this chapter discusses in more detail precisely what types of statutes',
1759:'constitute appropriations. appropriations do not represent cash actually set aside in the treasury. they represent legal authority granted by congress',
1760:'to incur obligations and to make disbursements for the purposes, during the time periods, and up to the amount limitations',
1761:'specified in the appropriation acts. see united states ex rel. becker v. westinghouse savannah river co., 305 f.3d 284 4th',
1762:'cir. 2002. appropriations are identified on financial documents by means of “account symbols,” which are assigned by the treasury department,',
1763:'based on the number and types of appropriations an agency receives and other types of funds it may control. an',
1764:'appropriation account symbol is a group of numbers, or a combination of numbers and letters, which identifies the agency responsible',
1765:'for the account, the period of availability of the appropriation, and the specific fund classification. detailed information on reading and',
1766:'identifying account symbols is contained in the treasury financial manual i tfm 21500. specific accounts for each agency are listed',
1767:'in a publication entitled federal account symbols and titles, issued quarterly as a supplement to the tfm. 4 glossary at',
1768:'21; andrus v. sierra club, 442 u.s. 347, 359 n.18 1979. see also 31 u.s.c. §§ 7012 and 11012. page',
1769:'25 gao04261sp appropriations law—vol. i chapter 2 the legal framework b. contract authority contract authority is a form of budget',
1770:'authority that permits obligations to be incurred in advance of appropriations. glossary at 22. it is to be distinguished from',
1771:'the inherent authority to enter into contracts possessed by every government agency, but which depends on the availability of funds.',
1772:'contract authority itself is not an appropriation; it provides the authority to enter into binding contracts but not the funds',
1773:'to make payments under them. therefore, contract authority must be funded or, in other words, the funds needed to liquidate',
1774:'obligations under the contracts must be provided by a subsequent appropriation called a “liquidating appropriation” or by the use of',
1775:'receipts or offsetting collections authorized for that purpose. see pcl construction service, inc. v. united states, 41 fed. cl. 242',
1776:'1998; national ass’n of regional councils v. costle, 564 f.2d 583, 586 d.c. cir. 1977; b300167, nov. 15, 2002; b228732,',
1777:'feb. 18, 1988. contract authority may be provided in appropriation acts e.g., b174839, mar. 20, 1984 or, more commonly, in',
1778:'other types of legislation e.g., b228732, feb. 18, 1988. either way, the authority must be specific. 31 u.s.c. § 1301d.',
1779:'as we noted in chapter 1, one of the objectives of the congressional budget and impoundment control act of 1974',
1780:'was to provide increased control by the appropriations process over various forms of socalled “backdoor spending” such as contract authority.',
1781:'to this end, legislation providing new contract authority will be subject to a point of order in either the senate',
1782:'or the house of representatives unless it also provides that the new authority will be effective for any fiscal year',
1783:'only to such extent or in such amounts as are provided in advance in appropriation acts. 2 u.s.c. § 651a.',
1784:'contract authority has a “period of availability” analogous to that for an appropriation. unless otherwise specified, if it appears in',
1785:'an appropriation act in connection with a particular appropriation, its period of availability will be the same as that for',
1786:'the appropriation. if it appears in an appropriation act without reference to a particular appropriation, its period of availability, again',
1787:'unless otherwise specified, will be the fiscal year covered by the appropriation act. 32 comp. gen. 29, 31 1952; b76061,',
1788:'may 14, 1948. see cray research, inc. v. united states, 44 fed. cl. 327, 331 n.41999; costle, 564 f.2d at',
1789:'587–88. this period of availability refers to the time period during which the contracts must be entered into. page 26',
1790:'gao04261sp appropriations law—vol. i chapter 2 the legal framework as noted above, appropriations constitute budget authority. an appropriation to liquidate',
1791:'contract authority, however, is not new budget authority, since contract authority itself constitutes new budget authority. this treatment is necessary',
1792:'to avoid counting the amounts twice. b171630, aug. 14, 1975. since the contracts entered into pursuant to contract authority constitute',
1793:'obligations binding on the united states, congress has little practical choice but to make the necessary liquidating appropriations. b228732, feb.',
1794:'18, 1988; b226887, sept. 17, 1987. as the supreme court has put it: “the expectation is that appropriations will be',
1795:'automatically forthcoming to meet these contractual commitments. this mechanism considerably reduces whatever discretion congress might have exercised in the course',
1796:'of making annual appropriations.” train v. city of new york, 420 u.s. 35, 39 n.2 1975. a failure or refusal',
1797:'by congress to make the necessary appropriation would not defeat the obligation, and the party entitled to payment would most',
1798:'likely be able to recover in a lawsuit. e.g., b211190, apr. 5, 1983. c. borrowing authority “borrowing authority” is authority',
1799:'that permits agencies to incur obligations and make payments to liquidate the obligations out of borrowed moneys.5 borrowing authority may',
1800:'consist of a authority to borrow from the treasury authority to borrow funds from the treasury that are realized from',
1801:'the sale of public debt securities, b authority to borrow directly from the public authority to sell agency debt securities,',
1802:'c authority to borrow from sell agency debt securities to the federal financing bank, or d some combination of the',
1803:'above. borrowing from the treasury is the most common form and is also known as “public debt financing.” as a',
1804:'general proposition, gao has traditionally expressed a preference for financing through direct appropriations on the grounds that the appropriations process',
1805:'provides enhanced congressional control. e.g., b301397, sept. 4, 2003; b141869, july 26, 1961. the congressional budget act met this concern',
1806:'to an extent by requiring generally that new borrowing authority, as with new contract authority, be 5 glossary at 22.',
1807:'page 27 gao04261sp appropriations law—vol. i chapter 2 the legal framework limited to the extent or amounts provided in appropriation',
1808:'acts. 2 u.s.c. § 651a. gao has recommended that borrowing authority be provided only to those accounts that can generate',
1809:'enough revenue in the form of collections from nonfederal sources to repay their debt. u.s. general accounting office, budget issues:',
1810:'budgeting for federal capital, gao/aimd975 washington, d.c.: nov. 12, 1996; budget issues: agency authority to borrow should be granted more',
1811:'selectively, gao/afmd894 washington, d.c.: sept. 15, 1989.6 on occasion, however, gao has recommended borrowing authority when supplemental appropriations might otherwise',
1812:'be necessary. see u.s. general accounting office, aviation insurance: federal insurance program needs improvements to ensure success, gao/rced94151 washington, d.c.:',
1813:'july 15, 1994. d. monetary credits a type of borrowing authority specified in the expanded definition of budget authority contained',
1814:'in the omnibus budget reconciliation act of 1990 is monetary credits. the monetary credit is a relatively uncommon concept in',
1815:'government transactions. at the present time, it exists mostly in a handful of statutes authorizing the government to use monetary',
1816:'credits to acquire property such as land or mineral rights. examples are the rattlesnake national recreation area and wilderness act',
1817:'of 1980, discussed in 62 comp. gen. 102 1982, and the cranberry wilderness act, discussed in b211306, apr. 9, 1984.7',
1818:'under the monetary credit procedure, the government does not issue a check in payment for the acquired property. instead, it',
1819:'gives the seller “credits” in dollar amounts reflecting the purchase price. the holder may then use these credits to offset',
1820:'or reduce amounts it owes the government in other transactions that may, depending on the terms of the governing legislation,',
1821:'be related or unrelated to the original transaction. the statute may use the term “monetary credit” as in the cranberry',
1822:'legislation or 6 if an agency cannot repay with external collections, it must either extend its debt with new borrowings,',
1823:'seek appropriations to repay the debt, or seek to have the debt forgiven by statute. repayment from external collections is',
1824:'the only alternative that reimburses the treasury in any meaningful sense. see gao/afmd894 at 17, 20. 7 these and other',
1825:'examples are noted in the report: u.s. general accounting office, budget treatment of monetary credits, gao/afmd8521 washington, d.c.: apr. 8,',
1826:'1985. for more recent examples, see mount st. helens national volcanic monument completion act, pub. l. no. 105279, 112 stat.',
1827:'2690 oct. 23, 1998; kentucky national forest land transfer act of 2000, pub. l. no. 106429, app. a1, 114 stat.',
1828:'1900, 1900a71 nov. 6, 2000; and pueblo of acoma land and mineral consolidation, pub. l. no. 107138, 116 stat. 6',
1829:'feb. 6, 2002. page 28 gao04261sp appropriations law—vol. i chapter 2 the legal framework some other designation such as “bidding',
1830:'rights” as in the rattlesnake act. where this procedure is authorized, the acquiring agency does not need to have appropriations',
1831:'or other funds available to cover the purchase price because no cash disbursement is made. an analogous device authorized for',
1832:'use by the commodity credit corporation is “commodity certificates.”8 the inclusion of monetary credits as budget authority has the effect',
1833:'of making them subject to the appropriation controls of the congressional budget act, such as the requirements of 2 u.s.c.',
1834:'§ 651. e. offsetting receipts the federal government receives money from numerous sources and in numerous contexts. for budgetary purposes,',
1835:'collections are classified in two major categories, governmental receipts and offsetting collections.9 governmental receipts or budget receipts are collections resulting',
1836:'from the government’s exercise of its sovereign or regulatory powers. examples are tax receipts, customs duties, and court fines. collections',
1837:'in this category are deposited in receipt accounts and are compared against total outlays for purposes of calculating the budget',
1838:'surplus or deficit. offsetting collections are collections resulting from businesstype or marketoriented activities, such as the sale of goods or',
1839:'services to the public, and intragovernmental transactions. their budgetary treatment differs from governmental receipts in that they are offset against',
1840:'deducted from or “netted against” budget authority in determining total outlays. offsetting collections are also divided into two major categories.10',
1841:'first is offsetting collections credited to appropriation or fund accounts. these are collections which, under specific statutory authority, may be',
1842:'deposited in an appropriation or fund account under the control of the receiving agency and which are then available for',
1843:'obligation by the agency subject to the purpose and time limitations of the receiving account. 8 see u.s. general accounting',
1844:'office, farm payments: cost and other information on usda’s commodity certificates, gao/rced87117br mar. 26, 1987. 9 see glossary at 22,',
1845:'27–29. 10 see u.s. general accounting office, federal user fees: budgetary treatment, status, and emerging management issues, gao/aimd9811 dec. 19,',
1846:'1997. page 29 gao04261sp appropriations law—vol. i chapter 2 the legal framework f. loan and loan guarantee authority second is',
1847:'offsetting receipts. offsetting receipts are offsetting collections that are deposited in a receipt account.11 for budgetary purposes, these amounts are',
1848:'deducted from budget authority by function or subfunction and by agency.12 the balanced budget and emergency deficit control act of',
1849:'1985, pub. l. no. 99177, 99 stat. 1038 dec. 12, 1985, first addressed the budgetary treatment of offsetting receipts by',
1850:'adding the authority “to collect offsetting receipts” to the definition of budget authority. the expanded definition in the omnibus budget',
1851:'reconciliation act of 1990, pub. l. no. 101508, 104 stat. 1388 nov. 5, 1990, is more explicit. the authority to',
1852:'obligate and expend the proceeds of offsetting receipts and collections is treated as negative budget authority. in addition, the reduction',
1853:'of offsetting receipts or collections e.g., legislation authorizing an agency to forego certain collections is treated as positive budget authority.13',
1854:'a loan guarantee is any guarantee, insurance, or other pledge with respect to the payment of all or a part',
1855:'of the principal or interest on any debt obligation of a nonfederal borrower to a nonfederal lender.14 the government does',
1856:'not know whether or to what extent it may be required to honor the guarantee until there has been a',
1857:'default. loan guarantees are contingent liabilities that may not be recorded as obligations until the contingency occurs. see 64 comp.',
1858:'gen. 282, 289 1985; b290600, july 10, 2002. see also chapter 11. prior to legislation enacted in november 1990, loan',
1859:'guarantees were expressly excluded from the definition of budget authority. budget authority was created only when an appropriation to liquidate',
1860:'loan guarantee authority was made. 11 this usually means a general fund receipt account miscellaneous receipts, but also includes amounts',
1861:'deposited in special or trust fund accounts. see american medical ass’n v. reno, 857 f. supp. 80 d.d.c. 1994; b199216,',
1862:'july 21, 1980. 12 h.r. conf. rep. no. 99433, at 102 1985. this is the conference report on the balanced',
1863:'budget and emergency deficit control act of 1985. 13 this was the intent of the 1985 legislation, as reflected in',
1864:'the conference report, supra, although it had not been expressed in the legislation itself. 14 glossary at 50–51. page 210',
1865:'gao04261sp appropriations law—vol. i chapter 2 the legal framework statutory reform of the budgetary treatment of federal credit programs came',
1866:'about in two stages. first, the balanced budget and emergency deficit control act of 1985 added a definition of “credit',
1867:'authority” to the congressional budget act, specifically, “authority to incur direct loan obligations or to incur primary loan guarantee commitments.”',
1868:'2 u.s.c. § 62210.15 any bill, resolution, or conference report providing new credit authority will be subject to a point',
1869:'of order unless the new authority is limited to the extent or amounts provided in advance in appropriation acts. 2',
1870:'u.s.c. § 651a.16 the second stage was the federal credit reform act of 1990,17 effective starting with fiscal year 1992.',
1871:'under this legislation, the “cost” of loan and loan guarantee programs is budget authority. cost means the estimated longterm cost',
1872:'to the government of a loan or loan guarantee defaults, delinquencies, interest subsidies, etc., calculated on a net present value',
1873:'basis, excluding administrative costs. except for entitlement programs the statute notes the guaranteed student loan program and the veterans’ home',
1874:'loan guaranty program as examples and certain commodity credit corporation programs, new loan guarantee commitments may be made only to',
1875:'the extent budget authority to cover their costs is provided in advance or other treatment is specified in appropriation acts.',
1876:'appropriations of budget authority are to be made to “credit program accounts,” and the programs administered from revolving nonbudgetary “financing',
1877:'accounts.” the federal credit reform act reflects the thrust of proposals by gao, the office of management and budget, the',
1878:'congressional budget office, and the senate budget committee. see u.s. general accounting office, credit reform: u.s. needs better method for',
1879:'estimating cost of foreign loans and guarantees, gao/nsiad/ggd9531 washington, d.c.: dec. 19, 1994; credit reform: casebycase assessment advisable in evaluating',
1880:'15 the statute does not further define the term “primary loan guarantee.” 16 this is the same control device we',
1881:'have previously noted for contract authority and borrowing authority. although loan guarantee authority was not viewed as budget authority in',
1882:'1985, the apparent rationale was that the control, if it is to be employed, must apply at the authorization stage',
1883:'because the opportunity for control no longer exists by the time liquidating budget authority becomes necessary. an example of a',
1884:'statute including this language is discussed in b230951, mar. 10, 1989. 17 omnibus budget reconciliation act of 1990, pub. l.',
1885:'no. 101508, § 13201a, 104 stat. 1388, 1388609 nov. 5, 1990. page 211 gao04261sp appropriations law—vol. i chapter 2 the',
1886:'legal framework coverage and compliance, gao/aimd9457 washington, d.c.: july 28, 1994. see also u.s. general accounting office, budget issues: budgetary',
1887:'treatment of federal credit programs, gao/afmd8942 washington, d.c.: apr. 10, 1989 discussion of the “net present value” approach to calculating',
1888:'costs. 3. some related concepts a. spending authority the congressional budget act of 1974 introduced the concept of “spending authority.”',
1889:'the term is a collective designation for authority provided in laws other than appropriation acts to obligate the united states',
1890:'to make payments. it includes, to the extent budget authority is not provided in advance in appropriation acts, permanent appropriations',
1891:'such as authority to spend offsetting collections, the nonappropriation forms of budget authority described above e.g., contract authority, borrowing authority,',
1892:'and authority to forego collection of offsetting receipts, entitlement authority, and any other authority to make payments. 2 u.s.c. §',
1893:'651c2. the different forms of spending authority are subject to varying controls in the budget and appropriations process. see chapter',
1894:'1, sections c and d. for example, as noted previously, proposed legislation providing new contract authority or new borrowing authority',
1895:'will be subject to a point of order unless it limits the new authority to such extent or amounts as',
1896:'provided in appropriation acts. further information on spending authority may be found in two 1987 gao companion reports—one a summary',
1897:'presentation18 and the other a detailed inventory19—as well as in more recent updates.20 18 u.s. general accounting office, budget issues:',
1898:'the use of spending authority and permanent appropriations is widespread, gao/afmd8744 washington, d.c.: july 17, 1987. 19 u.s. general accounting',
1899:'office, budget issues: inventory of accounts with spending authority and permanent appropriations, 1987, gao/afmd8744a washington, d.c.: july 17, 1987. 20',
1900:'u.s. general accounting office, updated 1987 inventory of accounts with spending authority and permanent appropriations, gao/ogc9823 washington, d.c.: jan. 19,',
1901:'1998; budget issues: inventory of accounts with spending authority and permanent appropriations, 1996, gao/aimd9679 washington, d.c.: may 31, 1996. page',
1902:'212 gao04261sp appropriations law—vol. i chapter 2 the legal framework b. entitlement authority entitlement authority is statutory authority, whether temporary',
1903:'or permanent, “to make payments including loans and grants, the budget authority for which is not provided for in advance',
1904:'by appropriation acts, to any person or government if, under the provisions of the law containing that authority, the united',
1905:'states is obligated to make such payments to persons or governments who meet the requirements established by that law.”21 entitlement',
1906:'authority is treated as spending authority during congressional consideration of the budget. in order to make entitlements subject to the',
1907:'reconciliation process, the congressional budget act provides that proposed legislation providing new entitlement authority to become effective prior to the',
1908:'start of the next fiscal year will be subject to a point of order. 2 u.s.c. § 651b1. entitlement legislation,',
1909:'which would require new budget authority in excess of the allocation made pursuant to the most recent budget resolution, must',
1910:'be referred to the appropriations committees. id. § 651b2. 4. types of appropriations appropriations are classified in different ways for',
1911:'different purposes. some are discussed elsewhere in this publication.22 the following classifications, although phrased in terms of appropriations, apply equally',
1912:'to the broader concept of budget authority. a. classification based on duration23 1. oneyear appropriation: an appropriation that is available',
1913:'for obligation only during a specific fiscal year. this is the most common type of appropriation. it is also known',
1914:'as a “fiscal year” or “annual” appropriation. 21 2 u.s.c. § 6229a; glossary at 44. 22 supplemental and deficiency appropriations',
1915:'are discussed in chapter 6, section d; lump sum and lineitem appropriations in chapter 6, section f; and continuing resolutions',
1916:'in chapter 8. 23 glossary at 22–23. page 213 gao04261sp appropriations law—vol. i chapter 2 the legal framework 2. multiple',
1917:'year appropriation: an appropriation that is available for obligation for a definite period of time in excess of one fiscal',
1918:'year. 3. noyear appropriation: an appropriation that is available for obligation for an indefinite period. a noyear appropriation is usually',
1919:'identified by appropriation language such as “to remain available until expended.” b. classification based on 1. definite appropriation: an appropriation',
1920:'of a specific amount of presence or absence of money. monetary limit24 2. indefinite appropriation: an appropriation of an unspecified',
1921:'amount of money. an indefinite appropriation may appropriate all or part of the receipts from certain sources, the specific amount',
1922:'of which is determinable only at some future date, or it may appropriate “such sums as may be necessary” for',
1923:'a given purpose. c. classification based on 1. current appropriation: an appropriation made by congress in, or permanency25 immediately prior',
1924:'to, the fiscal year or years during which it is available for obligation. 2. permanent appropriation: a “standing” appropriation which,',
1925:'once made, is always available for specified purposes and does not require repeated action by congress to authorize its use.26',
1926:'legislation authorizing an agency to retain and use offsetting receipts tends to be permanent; if so, it is a form',
1927:'of permanent appropriation. 24 glossary at 22. 25 glossary at 24. 26 this is similar to a noyear appropriation except',
1928:'that a noyear appropriation will be closed if there are no disbursements from the appropriation for two consecutive fiscal years,',
1929:'and if the head of the agency or the president determines that the purposes for which the appropriation was made',
1930:'have been carried out. 31 u.s.c. § 1555. in actual usage, the term “permanent appropriation” tends to be used more',
1931:'in reference to appropriations contained in permanent legislation, such as legislation establishing a revolving fund, while “noyear appropriation” is used',
1932:'more to describe appropriations found in appropriation acts. page 214 gao04261sp appropriations law—vol. i chapter 2 the legal framework d.',
1933:'classification based on 1. current or unexpired appropriation: an appropriation that is availability for new available for incurring new obligations.',
1934:'obligations27 2. expired appropriation: an appropriation that is no longer available to incur new obligations, although it may still be',
1935:'available for the recording and/or payment liquidation of obligations properly incurred before the period of availability expired. 3. canceled appropriation:',
1936:'an appropriation whose account is closed, and is no longer available for obligation or expenditure for any purpose. an appropriation',
1937:'may combine characteristics from more than one of the above groupings. for example, a “permanent indefinite” appropriation is open ended',
1938:'as to both period of availability and amount. examples are 31 u.s.c. § 1304 payment of certain judgments against the',
1939:'united states and 31 u.s.c. § 1322b2 refunding amounts erroneously collected and deposited in the treasury. e. reappropriation the term',
1940:'“reappropriation” means congressional action to continue the availability, whether for the same or different purposes, of all or part of',
1941:'the unobligated portion of budget authority that has expired or would otherwise expire. reappropriations are counted as budget authority in',
1942:'the first year for which the availability is extended.28 b. some basic concepts 1. what constitutes an the starting point',
1943:'is 31 u.s.c. § 1301d, which provides: appropriation “a law may be construed to make an appropriation out of the',
1944:'treasury or to authorize making a contract for the payment of money in excess of an appropriation only if the',
1945:'27 glossary at 24. see also our discussion of the disposition of appropriation balances in chapter 5, section d. 28',
1946:'glossary at 23. see also 31 u.s.c. § 1301b reappropriation for a different purpose is to be accounted for as',
1947:'a new appropriation. page 215 gao04261sp appropriations law—vol. i chapter 2 the legal framework law specifically states that an appropriation',
1948:'is made or that such a contract may be made.” thus, the rule is that the making of an appropriation',
1949:'must be expressly stated. an appropriation cannot be inferred or made by implication. e.g., 50 comp. gen. 863 1971. regular',
1950:'annual and supplemental appropriation acts present no problems in this respect as they will be apparent on their face. they,',
1951:'as required by 1 u.s.c. § 105, bear the title “an act making appropriations … .” there are situations in',
1952:'which statutes other than regular appropriation acts may be construed as making appropriations, however. see, e.g., 31 u.s.c. § 1304a',
1953:'“necessary amounts are appropriated to pay final judgments, awards, compromise settlements”; 31 u.s.c. § 1324 “necessary amounts are appropriated to',
1954:'the secretary of treasury for refunding internal revenue collections”. an appropriation is a form of budget authority that makes funds',
1955:'available to an agency to incur obligations and make expenditures.29 2 u.s.c. § 6222ai. see also 31 u.s.c. § 7012c',
1956:'“authority making amounts available for obligation or expenditure”. consequently, while the authority must be expressly stated, it is not necessary',
1957:'that the statute actually use the word “appropriation.” if the statute contains a specific direction to pay and a designation',
1958:'of the funds to be used, such as a direction to make a specified payment or class of payments “out',
1959:'of any money in the treasury not otherwise appropriated,” then this amounts to an appropriation. 63 comp. gen. 331 1984;',
1960:'13 comp. gen. 77 1933. see also 34 comp. gen. 590 1955. for example, a private relief act that directs',
1961:'the secretary of the treasury to pay, out of any money in the treasury not otherwise appropriated, a specified sum',
1962:'of money to a named individual constitutes an appropriation. 23 comp. dec. 167, 170 1916. another example is b160998, apr.',
1963:'13, 1978, concerning section 11 of the federal fire prevention and control act of 1974,30 which authorizes the secretary of',
1964:'the treasury to reimburse local fire departments or districts for costs incurred in fighting fires on federal 29 we discuss',
1965:'the concept of budget authority and define the term appropriation in section a “appropriations and related terminology” of this chapter.',
1966:'30 pub. l. no. 93498, 88 stat. 1535, 1543 oct. 29, 1974. page 216 gao04261sp appropriations law—vol. i chapter 2',
1967:'the legal framework property. since the statute directed the secretary to make payments “from any moneys in the treasury not',
1968:'otherwise appropriated” i.e., it contained both the specific direction to pay and a designation of the funds to be used,',
1969:'the comptroller general concluded that section 11 constituted a permanent indefinite appropriation. both elements of the test must be present.',
1970:'thus, a direction to pay without a designation of the source of funds is not an appropriation. for example, a',
1971:'private relief act that contains merely an authorization and direction to pay but no designation of the funds to be',
1972:'used does not make an appropriation. 21 comp. dec. 867 1915; b26414, jan. 7, 1944.31 similarly, public legislation enacted in',
1973:'1978 authorized the u.s. treasury to make an annual prepayment to guam and the virgin islands of the amount estimated',
1974:'to be collected over the course of the year for certain taxes, duties, and fees. while it was apparent that',
1975:'the prepayment at least for the first year would have to come from the general fund of the treasury, the',
1976:'legislation was silent as to the source of the funds for the prepayments, both for the first year and for',
1977:'subsequent years. it was concluded that while the statute may have established a permanent authorization, it was not sufficient under',
1978:'31 u.s.c. § 1301d to constitute an actual appropriation. b114808, aug. 7, 1979. congress subsequently made the necessary appropriation in',
1979:'pub. l. no. 96126, 93 stat. 954, 966 nov. 27, 1979. the designation of a source of funds without a',
1980:'specific direction to pay is also not an appropriation. 67 comp. gen. 332 1988. thus far, we have been talking',
1981:'about the authority to make disbursements from the general fund of the treasury. there is a separate line of decisions',
1982:'establishing the proposition that statutes, which authorize the collection of fees and their deposit into a particular fund, and, which',
1983:'make the fund available for expenditure for a specified purpose, constitute continuing or permanent appropriations; that is, the money is',
1984:'available for obligation or expenditure without further action by congress. often it is argued that a law making moneys available',
1985:'from some source other than the general fund of the treasury is not an appropriation. this view is wrong. statutes',
1986:'establishing revolving funds and various special deposit funds and making 31 a few early cases will be found that appear',
1987:'inconsistent with the proposition stated in the text. e.g., 6 comp. dec. 514, 516 1899; 4 comp. dec. 325, 327',
1988:'1897. these cases predate the enactment on july 1, 1902 32 stat. 552, 560 of what is now 31 u.s.c.',
1989:'§ 1301d and should be disregarded. page 217 gao04261sp appropriations law—vol. i chapter 2 the legal framework amounts in those',
1990:'funds available for obligation and expenditure are permanent appropriations. the reason is that, under 31 u.s.c. § 3302b, all money',
1991:'received for the use of the united states must be deposited in the general fund of the treasury absent statutory',
1992:'authority for some other disposition. ; b271894, july 24, 1997. once the money is in the treasury, it can be',
1993:'withdrawn only if congress appropriates it.32 therefore, the authority for an agency to obligate or expend collections without further congressional',
1994:'action amounts to a continuing appropriation or permanent appropriation of the collections. e.g., united biscuit co. v. wirtz, 359 f.2d',
1995:'206, 212 d.c. cir. 1965, cert. denied, 384 u.s. 971 1966; 69 comp. gen. 260, 262 1990; 73 comp. gen.',
1996:'321 1994. cases involving the “special fund” principle fall into two categories. in the first group, the question is whether',
1997:'a particular statute authorizing the deposit and expenditure of a class of receipts makes those funds available for the specified',
1998:'purpose or purposes without further congressional action. these cases, in other words, raise the basic question of whether the statute',
1999:'may be regarded as an appropriation. cases answering this question in the affirmative include 59 comp. gen. 215 1980 mobile',
2000:'home inspection fees collected by the secretary of housing and urban development; b228777, aug. 26, 1988 licensing revenues received by',
2001:'the commission on the bicentennial; b204078.2, may 6, 1988, and b257525, nov. 30, 1994 panama canal revolving fund; b197118, jan.',
2002:'14, 1980 national defense stockpile transaction fund; and b90476, june 14, 1950. see also 1 comp. gen. 704 1922 revolving',
2003:'fund created in appropriation act remains available beyond end of fiscal year where not specified otherwise. the second group of',
2004:'cases involves the applicability of statutory restrictions or other provisions that by their terms apply to “appropriated funds” or exemptions',
2005:'that apply to “nonappropriated funds.” for example, fees collected from federal credit unions and deposited in a revolving fund for',
2006:'administrative and supervisory expenses have been regarded as appropriated funds for various purposes. 63 comp. gen. 31 1983, aff’d upon',
2007:'reconsideration, b210657, may 25, 1984 payment of relocation expenses; 35 comp. gen. 615 1956 restrictions on reimbursement for certain telephone',
2008:'calls made from private residences. other situations applying the “special fund as appropriation” principle are summarized below: 32 u.s. const.',
2009:'art. i, § 9, cl. 7, discussed in chapter 1, section b. page 218 gao04261sp appropriations law—vol. i chapter 2',
2010:'the legal framework various funds held to constitute appropriated funds for purposes of gao’s bid protest jurisdiction:33 65 comp. gen.',
2011:'25 1985 funds received by national park service for visitor reservation services; 64 comp. gen. 756 1985 tennessee valley authority',
2012:'power program funds; 57 comp. gen. 311 1978 commissary surcharges. applicability of other procurement laws: united biscuit co., supra armed',
2013:'services procurement act applicable to military commissary purchases; b217281o.m., mar. 27, 1985 federal procurement regulations applicable to pension benefit guaranty',
2014:'corporation revolving funds; b275669.2, july 30, 1997 american battle monuments commission must comply with the federal acquisition regulations and federal',
2015:'property and administrative services act. user fee toll charges collected by the saint lawrence seaway development corporation are appropriated funds.',
2016:'however, many of the restrictions on the use of appropriated funds will nevertheless be inapplicable by virtue of the corporation’s',
2017:'organic legislation and its status as a corporation. b193573, jan. 8, 1979, modified and aff’d, b193573, dec. 19, 1979; b217578,',
2018:'oct. 16, 1986. the december 1979 decision noted that the capitalization of a government corporation, whether a lumpsum appropriation in',
2019:'the form of capital stock or the authority to borrow through the issuance of longterm bonds to the u.s. treasury,',
2020:'consists of appropriated funds. user fees collected under the tobacco inspection act are appropriated funds and as such are subject',
2021:'to restrictions on payment of employee health benefits. 63 comp. gen. 285 1984. customs service duty collections are appropriations authorized',
2022:'to be used for administration and collection costs. b241488, mar. 13, 1991. the prison industries fund is an appropriated fund',
2023:'subject to the general services administration’s surplus property regulations. 60 comp. gen. 323 1981. other cases in this category are',
2024:'50 comp. gen. 323 1970; 35 comp. gen. 436 1956; b191761, sept. 22, 1978; and b67175, july 16, 1947. in',
2025:'33 gao regulations exempt nonappropriated fund procurements. 4 c.f.r. § 21.5g. page 219 gao04261sp appropriations law—vol. i chapter 2 the',
2026:'legal framework each of the special fund cases cited above, the authority to make payments from the fund involved was',
2027:'clear from the governing legislation. finally, the cases cited above generally involve statutes that specify the fund to which the',
2028:'collections are to be deposited. this is not essential, however. a statute that clearly makes receipts available for obligation or',
2029:'expenditure without further congressional action will be construed as authorizing the establishment of such a fund as a necessary implementation',
2030:'procedure. 59 comp. gen. 215 42 u.s.c. § 5419; b226520, apr. 3, 1987 nondecision letter 26 u.s.c. § 7475. see',
2031:'also 13 comp. dec. 700 1907. two recent court decisions held that revolving funds do not constitute “appropriations” for purposes',
2032:'of determining whether those courts have jurisdiction over claims against the united states under the tucker act 28 u.s.c. §',
2033:'1491. these decisions—core concepts of florida, inc. v. united states, 327 f.3d 1331 fed. cir. 2003, petition for cert. filed,',
2034:'72 u.s.l.w. 3148 aug. 18, 2003, and ains, inc. v. united states, 56 fed. cl. 522 2002—concluded that gao’s view',
2035:'of revolving funds as continuing or permanent appropriations does not apply to issues of tucker act jurisdiction.34 the court of',
2036:'appeals for the federal circuit, the court of federal claims, and their predecessors traditionally hold that tucker act jurisdiction does',
2037:'not extend to “nonappropriated fund instrumentalities” that receive no traditional general revenue appropriations derived from the general fund of the',
2038:'treasury.35 core concepts and ains dealt only with the issue of tucker act jurisdiction in this context and have no',
2039:'bearing on the status of revolving funds in the broader appropriations law context discussed above.36 34 but see mdb communications,',
2040:'inc. v. united states, 53 fed. cl. 245 2002, and american management systems, inc. v. united states, 53 fed. cl.',
2041:'525 2002, two other recent decisions that do apply gao’s view that revolving funds are appropriations to support tucker act',
2042:'jurisdiction. 35 e.g., furash & co. v. united states, 252 f.3d 1336, 1342 fed. cir. 2001; denkler v. united states,',
2043:'782 f.2d 1003 fed. cir. 1986; aaron v. united states, 51 fed. cl. 690 2002; l’enfant plaza properties, inc. v.',
2044:'united states, 668 f.2d 1211 ct. cl. 1982; kyer v. united states, 369 f.2d 714, 718 ct. cl. 1966, cert.',
2045:'denied, 387 u.s. 929 1967. 36 see, in this regard, core concepts, 327 f.3d at 1338, noting that gao’s position',
2046:'and the authorities it cites on the status of revolving funds “are not applicable to the non appropriated funds doctrine',
2047:'[governing tucker act jurisdiction] in the same sense that they are applicable to federal appropriations law.” page 220 gao04261sp appropriations',
2048:'law—vol. i chapter 2 the legal framework 2. specific versus general appropriations a. general rule an appropriation for a specific',
2049:'object is available for that object to the exclusion of a more general appropriation, which might otherwise be considered available',
2050:'for the same object, and the exhaustion of the specific appropriation does not authorize charging any excess payment to the',
2051:'more general appropriation, unless there is something in the general appropriation to make it available in addition to the specific',
2052:'appropriation.37 in other words, if an agency has a specific appropriation for a particular item, and also has a general',
2053:'appropriation broad enough to cover the same item, it does not have an option as to which to use. it',
2054:'must use the specific appropriation. were this not the case, agencies could evade or exceed congressionally established spending limits. the',
2055:'cases illustrating this rule are legion.38 generally, the fact patterns and the specific statutes involved are of secondary importance. the',
2056:'point is that the agency does not have an option. if a specific appropriation exists for a particular item, then',
2057:'that appropriation must be used and it is improper to charge the more general appropriation or any other appropriation or',
2058:'to use it as a “backup.” a few cases are summarized as examples: a state department appropriation for “publication of',
2059:'consular and commercial reports” could not be used to purchase books in view of a specific appropriation for “books and',
2060:'maps.” 1 comp. dec. 126 1894. the comptroller of the treasury referred to the rule as having been well established',
2061:'“from time immemorial.” id. at 127. the existence of a specific appropriation for the expenses of repairing the u.s. courthouse',
2062:'and jail in nome, alaska, precludes the charging of such expenses to more general appropriations such as “miscellaneous expenses, u.s.',
2063:'courts” or “support of prisoners, u.s. courts.” 4 comp. gen. 476 1924. 37 see, e.g., b272191, nov. 4, 1997. 38',
2064:'a few are 64 comp. gen. 138 1984; 36 comp. gen. 526 1957; 17 comp. gen. 974 1938; 5 comp.',
2065:'gen. 399 1925; b289209, may 31, 2002; b290011, mar. 25, 2002. page 221 gao04261sp appropriations law—vol. i chapter 2 the',
2066:'legal framework a specific appropriation for the construction of an additional wing on the navy department building could not be',
2067:'supplemented by a more general appropriation to build a larger wing desired because of increased needs. 20 comp. gen. 272',
2068:'1940. see b235086, apr. 24, 1991 a specific appropriation for the construction and acquisition of a building precludes the forest',
2069:'service from using a more general appropriation to pay for such a purchase. see also b278121, nov. 7, 1997. appropriations',
2070:'of the district of columbia health department could not be used to buy penicillin to be used for civil defense',
2071:'purposes because the district had received a specific appropriation for “all expenses necessary for the office of civil defense.” 31',
2072:'comp. gen. 491 1952. further, the fact that an appropriation for a specific purpose is included as an earmark in',
2073:'a general appropriation does not deprive it of its character as an appropriation for the particular purpose designated, and where',
2074:'such specific appropriation is available for the expenses necessarily incident to its principal purpose, such incidental expenses may not be',
2075:'charged to the more general appropriation. 20 comp. gen. 739 1941. in the cited decision, a general appropriation for the',
2076:'geological survey contained the provision “including not to exceed $45,000 for the purchase and exchange … of … passengercarrying vehicles.”',
2077:'it was held that the costs of transportation incident to the delivery of the purchased vehicles were chargeable to the',
2078:'specific $45,000 appropriation and not to the more general portion of the appropriation. similarly, a general appropriation for the library',
2079:'of congress contained the provision, “$9,619,000 is to remain available until expended for the acquisition of books, periodicals, newspapers and',
2080:'all other materials… .” the comptroller general held that the $9,619,000 was an earmark requiring the library to set aside',
2081:'that money to purchase books and other library materials. the earmark barred the library from transferring or using those funds',
2082:'for another purpose. b278121, supra. in deciding the proper appropriation to charge for administrative costs for oil pollution act claims,',
2083:'the comptroller general stated, “as a general rule, an appropriation for a specific object is available for that object to',
2084:'the exclusion of a more general appropriation which might otherwise be considered for the same object.” b289209, supra citing 65',
2085:'comp. gen. 881 1986; b290005, july 1, 2002. the rule has also been applied to expenditures by a government corporation',
2086:'from corporate funds for an object for which the corporation page 222 gao04261sp appropriations law—vol. i chapter 2 the legal',
2087:'framework b. two appropriations available for same purpose had received a specific appropriation, where the reason for using corporate funds',
2088:'was to avoid a restriction applicable to the specific appropriation. b142011, june 19, 1969. of course, the rule that the',
2089:'specific governs over the general is not peculiar to appropriation law. it is a general principle of statutory construction and',
2090:'applies equally to provisions other than appropriation statutes. e.g., 62 comp. gen. 617 1983; b277905, mar. 17, 1998; b152722, aug.',
2091:'16, 1965. however, another principle of statutory construction is that two statutes should be construed harmoniously so as to give',
2092:'maximum effect to both wherever possible. in dealing with nonappropriation statutes, the relationship between the two principles has been stated',
2093:'as follows: “where there is a seeming conflict between a general provision and a specific provision and the general provision',
2094:'is broad enough to include the subject to which the specific provision relates, the specific provision should be regarded as',
2095:'an exception to the general provision so that both may be given effect, the general applying only where the specific',
2096:'provision is inapplicable.” b163375, sept. 2, 1971. see also b255979, oct. 30, 1995. as stated before, however, in the appropriations',
2097:'context, this does not mean that a general appropriation is available when the specific appropriation has been exhausted. using the',
2098:'more general appropriation would be an unauthorized transfer discussed later in this chapter and would improperly augment the specific appropriation',
2099:'discussed in chapter 6. although rare, there are situations in which either of two appropriations can be construed as available',
2100:'for a particular object, but neither can reasonably be called the more specific of the two. the rule in this',
2101:'situation is this: where two appropriations are available for the same purpose, the agency may select which one to charge',
2102:'for the expenditure in question. once that election has been made, the agency must continue to use the same appropriation',
2103:'for that purpose unless the agency at the beginning of the fiscal year informs the congress of its intent to',
2104:'change for the next fiscal year. see u.s. general accounting office, unsubstantiated doe travel payments, gao/rced9658r washington, d.c.: dec. 28,',
2105:'1995. of course, where statutory language clearly demonstrates congressional intent to make one appropriation available to supplement or increase a',
2106:'page 223 gao04261sp appropriations law—vol. i chapter 2 the legal framework different appropriation for the same type of work, both',
2107:'appropriations are available. see b272191, nov. 4, 1997 army permitted to use operations and maintenance o&m funds for property maintenance',
2108:'and repair work in germany even though real property maintenance, defense rpm,d funds were available for the same work because',
2109:'congress said the o&m funds were “in addition to the funds specifically appropriated for real property maintenance under the heading',
2110:'[rpm,d]”. 3. transfer and reprogramming for a variety of reasons, agencies have a legitimate need for a certain amount of',
2111:'flexibility to deviate from their budget estimates. two ways to shift money are transfer and reprogramming. while the two concepts',
2112:'are related in this broad sense, they are nevertheless different. a. transfer transfer is the shifting of funds between appropriations.39',
2113:'for example, if an agency receives one appropriation for operations and maintenance and another for capital expenditures, a shifting of',
2114:'funds from either one to the other is a transfer. the basic rule with respect to transfer is simple: transfer',
2115:'is prohibited without statutory authority. the rule applies equally to 1 transfers from one agency to another,40 2 transfers from',
2116:'one account to another within the same agency,41 and 3 transfers to an interagency or intraagency working fund.42 in each',
2117:'instance, statutory authority is required. an agency’s erroneous characterization of a proposed transfer as a “reprogramming” is irrelevant. see b202362,',
2118:'mar. 24, 1981. moreover, informal congressional approval of an unauthorized transfer of funds 39 u.s. general accounting office, a glossary',
2119:'of terms used in the federal budget process exposure draft, gao/afmd2.1.1 washington, d.c.: jan. 1993, at 80. 40 7 comp.',
2120:'gen. 524 1928; 4 comp. gen. 848 1925; 17 comp. dec. 174 1910. a case in which adequate statutory authority',
2121:'was found to exist is b217093, jan. 9, 1985 transfer from japanunited states friendship commission to department of education to',
2122:'partially fund a study of japanese education. 41 70 comp. gen. 592 1991; 65 comp. gen. 881 1986; 33 comp.',
2123:'gen. 216 1953; 33 comp. gen. 214 1953; 17 comp. dec. 7 1910; b286661, jan. 19, 2001; b206668, mar. 15,',
2124:'1982; b178205.80, apr. 13, 1976; b164912o.m., dec. 21, 1977. 42 26 comp. gen. 545, 548 1947; 19 comp. gen. 774',
2125:'1940; 6 comp. gen. 748 1927; 4 comp. gen. 703 1925. page 224 gao04261sp appropriations law—vol. i chapter 2 the',
2126:'legal framework between appropriation accounts does not have the force and effect of law. b248284.2, sept. 1, 1992. the rule',
2127:'applies even though the transfer is intended as a temporary expedient for example, to alleviate a temporary exhaustion of funds',
2128:'and the agency contemplates reimbursement. thus, without statutory authority, an agency cannot “borrow” from another account or another agency. 36',
2129:'comp. gen. 386 1956; 13 comp. gen. 344 1934; b290011, mar. 25, 2002. an exception to this proposition is 31',
2130:'u.s.c. § 1534, under which an agency may temporarily charge one appropriation for an expenditure benefiting another appropriation of the',
2131:'same agency, as long as amounts are available in both appropriations and the accounts are adjusted to reimburse the appropriation',
2132:'initially charged during or as of the close of the same fiscal year. this statute was intended to facilitate “common',
2133:'service” activities. for example, an agency procuring equipment to be used jointly by several bureaus or offices within the agency',
2134:'funded under separate appropriations may initially charge the entire cost to a single appropriation and later apportion the cost among',
2135:'the appropriations of the benefiting components. see generally s. rep. no. 891284 1966. the prohibition against transfer is codified in',
2136:'31 u.s.c. § 1532, the first sentence of which provides: “an amount available under law may be withdrawn from one',
2137:'appropriation account and credited to another or to a working fund only when authorized by law.” in addition to the',
2138:'express prohibition of 31 u.s.c. § 1532, an unauthorized transfer would violate 31 u.s.c. § 1301a which prohibits the use',
2139:'of appropriations for other than their intended purpose; would constitute an unauthorized augmentation of the receiving appropriation; and could, if',
2140:'the transfer led to overobligating the receiving appropriation, result in an antideficiency act 31 u.s.c. § 1341 violation as well.',
2141:'e.g., b286929, apr. 25, 2001; b248284.2, sept. 1, 1992; b222009o.m., mar. 3, 1986; 15 op. off. legal counsel 74 1991.',
2142:'some agencies have limited transfer authority either in permanent legislation or in appropriation act provisions. such authority will commonly set',
2143:'a percentage limit on the amount that may be transferred from a given appropriation and/or the amount by which the',
2144:'receiving appropriation may be augmented. a transfer pursuant to such authority is, of course, entirely proper. b290659, oct. 31, 2002;',
2145:'b167637, oct. 11, 1973. page 225 gao04261sp appropriations law—vol. i chapter 2 the legal framework an example is 7 u.s.c.',
2146:'§ 2257, which authorizes transfers between department of agriculture appropriations. the amount to be transferred may not exceed 7 percent',
2147:'of the “donor” appropriation, and the receiving appropriation may not be augmented by more than 7 percent except in extraordinary',
2148:'emergencies. cases construing this provision include 33 comp. gen. 214; b218812, jan. 23, 1987; b123498, apr. 11, 1955; and b218812o.m.,',
2149:'july 30, 1985. see also b279886, apr. 28, 1998 noting 5 percent limit on transfer in department of justice appropriation.',
2150:'if an agency has transfer authority of this type, its exercise is not precluded by the fact that the amount',
2151:'of the receiving appropriation had been reduced from the agency’s budget request. b151157, june 27, 1963. also, the transfer statute',
2152:'is an independent grant of authority and, unless expressly provided otherwise, the percentage limitations do not apply to transfers under',
2153:'any separate transfer authority the agency may have. b239031, june 22, 1990. another type of transfer authority is illustrated by',
2154:'31 u.s.c. § 1531, which authorizes the transfer of unexpended balances incident to executive branch reorganizations, but only for purposes',
2155:'for which the appropriation was originally available. cases discussing this authority include 31 comp. gen. 342 1952 and b92288 et',
2156:'al., aug. 13, 1971. statutory transfer authority does not require any particular “magic words.” of course the word “transfer” will',
2157:'help, but it is not necessary as long as the words that are used make it clear that transfer is',
2158:'being authorized. b213345, sept. 26, 1986; b217093, supra; b182398, mar. 29, 1976 letter to senator laxalt, modified on other grounds',
2159:'by 64 comp. gen. 370 1985. some transfer statutes have included requirements for approval by one or more congressional committees.',
2160:'in light of the supreme court’s decision in immigration & naturalization service v. chadha, 462 u.s. 919 1983, such “legislative',
2161:'veto” provisions are no longer valid. whether the transfer authority to which the veto provision is attached remains valid depends',
2162:'on whether it can be regarded as severable from the approval requirement. this in turn depends on an evaluation, in',
2163:'light of legislative history and other surrounding circumstances, of whether congress would have enacted the substantive authority without the veto',
2164:'provision. see, e.g., 15 op. off. legal counsel 49 1991 the justice department office of legal counsel olc concluded that',
2165:'an unconstitutional legislative veto provision of the selective service act was severable from the statute’s grant of authority to page',
2166:'226 gao04261sp appropriations law—vol. i chapter 2 the legal framework the president to obtain expedited delivery of military contracts; 6',
2167:'op. off. legal counsel 520 1982 olc concluded that a treasury department transfer provision was severable and therefore survived a',
2168:'legislative veto provision. the precise parameters of transfer authority will, of course, depend on the terms of the statute which',
2169:'grants it. the analytical starting point is the second sentence of 31 u.s.c. § 1532: “except as specifically provided by',
2170:'law, an amount authorized to be withdrawn and credited [to another appropriation account or to a working fund] is available',
2171:'for the same purpose and subject to the same limitations provided by the law appropriating the amount.” in a 2001',
2172:'decision, the comptroller general found that funds withdrawn from other agencies’ appropriations and credited to the library of congress fedlink43',
2173:'revolving fund retained their time character and did not assume the time character of the fedlink revolving fund. b288142, sept.',
2174:'6, 2001. the library of congress proposed retaining in the fund amounts of fiscal year money advanced by other agencies',
2175:'in earlier fiscal years when orders were placed and, to the extent the advances were not needed to cover the',
2176:'costs of the orders, applying the excess amounts to new orders placed in subsequent fiscal years. the library pointed out',
2177:'that the law establishing the revolving fund made amounts in the fund available without fiscal year limitation. the comptroller general',
2178:'concluded that “amounts withdrawn from a fiscal year appropriation and credited to a no year revolving fund, such as the',
2179:'fedlink revolving fund, are available for obligation only during the fiscal year of availability of the appropriation from which the',
2180:'amount was withdrawn.” id. the comptroller general noted that section 1532 is a significant control feature protecting congress’s constitutional prerogatives',
2181:'of the purse. placing time limits on the availability of appropriations is a fundamental means of congressional control because it',
2182:'permits congress to periodically review a given agency’s programs and activities. given the significance of time restrictions in preserving congressional',
2183:'powers of the purse, gao looks for clear 43 library of congress fiscal operations improvement act of 2000, pub. l.',
2184:'no. 106481, § 103, 114 stat. 2187, 2189 nov. 9, 2000, amended by the fiscal year 2002 legislative branch appropriations,',
2185:'pub. l. no. 10768, 115 stat. 560, 588–89 nov. 12, 2001, codified at 2 u.s.c. § 182c. page 227 gao04261sp',
2186:'appropriations law—vol. i chapter 2 the legal framework legislative expressions of congressional intent before interpreting legislation to override time limitations',
2187:'that congress, through the appropriations process, has imposed on an agency’s use of funds. the comptroller general rejected the library’s',
2188:'view that the language in the fedlink statute overrode the time limitation imposed on funds transferred into fedlink because, until',
2189:'the library had earned those amounts by performing the services ordered from the library, these transferred amounts were not a',
2190:'part of the corpus of fedlink. id. the fedlink decision references a situation that gao addressed in 1944 with regard',
2191:'to a noyear revolving fund called the navy procurement fund. 23 comp. gen. 668 1944. the navy incorrectly believed that',
2192:'because the revolving fund was not subject to fiscal year limitation, advances to the fund made from annual appropriations were',
2193:'available until expended. a number of other gao decisions, several predating the enactment of 31 u.s.c. § 1532, have made',
2194:'essentially the same point—that, except to the extent the statute authorizing a transfer provides otherwise, transferred funds are available for',
2195:'purposes permissible under the donor appropriation and are subject to the same limitations and restrictions applicable to the donor appropriation.',
2196:'an example of this is the economy act, 31 u.s.c. § 1535.44 restrictions applicable to the receiving account but not',
2197:'to the donor account may or may not apply. where transfers are intended to accomplish a purpose of the source',
2198:'appropriation economy act transactions, for example, transferred funds have been held not subject to such restrictions. e.g., 21 comp. gen.',
2199:'254 1941; 18 comp. gen. 489 1938; b35677, july 27, 1943; b131580o.m., june 4, 1957. however, for transfers intended to',
2200:'permit a limited augmentation of the receiving account 7 u.s.c. § 2257, for example, this principle is arguably inapplicable in',
2201:'view of the fundamentally different purpose of the transfer. as noted above, in the context of working funds, the prohibition',
2202:'against transfer applies not only to interagency funds, but to the consolidation of all or parts of different appropriations of',
2203:'the same agency into a single fund as well. in a few instances, the “pooling” of portions of agency unit',
2204:'44 e.g., 31 comp. gen. 109, 114–15 1951; 28 comp. gen. 365 1948; 26 comp. gen. at 548; 18 comp.',
2205:'gen. 489; 17 comp. gen. 900 1938; 17 comp. gen. 73 1937; 16 comp. gen. 545 1936; b167034o.m., jan. 20,',
2206:'1970. we discuss the economy act in detail in chapter 12, volume iii of the third edition of principles of',
2207:'federal appropriations law. page 228 gao04261sp appropriations law—vol. i chapter 2 the legal framework appropriations has been found authorized where',
2208:'necessary to implement a particular statute. in b195775, sept. 10, 1979, the comptroller general approved the transfer of portions of',
2209:'unit appropriations to an agencywide pool to be used to fund the merit pay system established by the civil service',
2210:'reform act of 1978. the transfers, while not explicitly authorized in the statute, were seen as necessary to implement the',
2211:'law and carry out the legislative purpose. following this decision, the comptroller general held in 60 comp. gen. 686 1981',
2212:'that the treasury department could pool portions of appropriations made to several separate bureaus to fund an executive development program',
2213:'also authorized by the civil service reform act. however, pooling that would alter the purposes for which funds were appropriated',
2214:'is an impermissible transfer unless authorized by statute. e.g., b209790o.m., mar. 12, 1985. it is also impermissible to transfer more',
2215:'than the cost of the goods or services provided to an ordering agency. 70 comp. gen. 592, 595 1991. the',
2216:'reappropriation of an unexpended balance for a different purpose is a form of transfer. such funds cease to be available',
2217:'for the purposes of the original appropriation. 18 comp. gen. 564 1938; a79180, july 30, 1936. cf. 31 u.s.c. §',
2218:'1301b reappropriation for different purpose to be accounted for as a new appropriation. if the reappropriation is of an amount',
2219:'“not to exceed” a specified sum, and the full amount is not needed for the new purpose, the balance not',
2220:'needed reverts to the source appropriation. 18 comp. gen. at 565. the prohibition against transfer would not apply to “transfers”',
2221:'of an agency’s administrative allocations within a lumpsum appropriation since the allocations are not legally binding.45 this is a reprogramming,',
2222:'which we discuss below. thus, where the then department of health, education, and welfare received a lumpsum appropriation covering several',
2223:'grant programs, it could set aside a portion of each program’s allocation for a single fund to be used for',
2224:'“crosscutting” grants intended to serve more than one target population, as long as the grants were for projects within the',
2225:'scope or purpose of the lumpsum appropriation. b157356, aug. 17, 1978. b. reprogramming in 1985, the deputy secretary of defense',
2226:'made the following statement: 45 the agency must be careful that a transfer of administrative allocations does not, under its',
2227:'own fund control regulations, produce a violation of 31 u.s.c. § 1517a, discussed further in chapter 6. page 229 gao04261sp',
2228:'appropriations law—vol. i chapter 2 the legal framework “the defense budget does not exist in a vacuum. there are forces',
2229:'at work to play havoc with even the best of budget estimates. the economy may vary in terms of inflation;',
2230:'political realities may bring external forces to bear; factoflife or programmatic changes may occur. the very nature of the lengthy',
2231:'and overlapping cycles of the budget process poses continual threats to the integrity of budget estimates. reprogramming procedures permit us',
2232:'to respond to these unforeseen changes and still meet our defense requirements.”46 the thrust of this statement, while made from',
2233:'the perspective of the defense department, applies at least to some extent to all agencies. reprogramming is the utilization of',
2234:'funds in an appropriation account for purposes other than those contemplated at the time of appropriation.47 in other words, it',
2235:'is the shifting of funds from one object to another within an appropriation. the term “reprogramming” appears to have come',
2236:'into use in the mid1950s although the practice, under different names, predates that time.48 the authority to reprogram is implicit',
2237:'in an agency’s responsibility to manage its funds; no statutory authority is necessary. see lincoln v. vigil, 508 u.s. 182,',
2238:'192 1993 “after all, the very point of a lumpsum appropriation is to give an agency the capacity to adapt',
2239:'to changing circumstances and meet its statutory responsibilities in what it sees as the most effective or desirable way.”. see',
2240:'also 4b op. off. legal counsel 701 1980 discussing the attorney general’s authority to reprogram to avoid deficiencies; b196854.3, mar.',
2241:'19, 1984 congress is “implicitly conferring the authority to reprogram” by enacting lumpsum appropriations. indeed, reprogramming is usually a nonstatutory',
2242:'arrangement. this means that there is no general statutory provision either authorizing or prohibiting it, 46 reprogramming action within the',
2243:'department of defense: hearing before the house armed services committee sept. 30, 1985 remarks prepared for delivery by the honorable',
2244:'william h. taft iv, deputy secretary of defense, unprinted. 47 u.s. general accounting office, a glossary of terms used in',
2245:'the federal budget process exposure draft, gao/afmd2.1.1 washington, d.c.: jan. 1993, at 74; b164912o.m., dec. 21, 1977. 48 louis fisher,',
2246:'presidential spending power, 76–77 1975. fisher also briefly traces the evolution of the concept. page 230 gao04261sp appropriations law—vol. i',
2247:'chapter 2 the legal framework and it has evolved largely in the form of informal i.e., nonstatutory agreements between various',
2248:'agencies and their congressional oversight committees. these informal arrangements do not have the force and effect of law. blackhawk heating',
2249:'& plumbing co. v. united states, 622 f.2d 539, 548 ct. cl. 1980. see also 56 comp. gen. 201 1976,',
2250:'holding that the navy’s failure to complete a form required by defense department reprogramming regulations was not sufficient to support',
2251:'a claim for proposal preparation costs by an unsuccessful bidder upon cancellation of the proposal. thus, as a matter of',
2252:'law, an agency is free to reprogram unobligated funds as long as the expenditures are within the general purpose of',
2253:'the appropriation and are not in violation of any other specific limitation or otherwise prohibited. e.g., b123469, may 9, 1955;',
2254:'b279338, jan. 4, 1999. this is true even though the agency may already have administratively allotted the funds to a',
2255:'particular object. 20 comp. gen. 631 1941. in some situations, the agency’s discretion may rise to the level of a',
2256:'duty. e.g., blackhawk heating & plumbing, 622 f.2d at 552 n.9 satisfaction of obligations under a settlement agreement. there are',
2257:'at present no reprogramming guidelines applicable to all agencies. as one might expect, reprogramming policies, procedures, and practices vary considerably',
2258:'among agencies.49 in view of the nature of its activities and appropriation structure, the defense department has detailed and sophisticated',
2259:'procedures.50 in some cases, congress has attempted to regulate reprogramming by statute, and of course any applicable statutory provisions control.',
2260:'b283599.2, sept. 29, 1999; b279886, apr. 28, 1998; b164912o.m., supra. for example, a provision in the fiscal year 2002 defense',
2261:'department appropriation act prohibits the use of funds to prepare or present a 49 gao reports in this area include:',
2262:'u.s. general accounting office, information on reprogramming authority and trust funds, aimd96102r washington, d.c.: june 7, 1996; economic assistance: ways',
2263:'to reduce the reprogramming notification burden and improve congressional oversight, gao/nsiad89202 washington, d.c.: sept. 21, 1989 foreign assistance reprogramming; budget',
2264:'reprogramming: opportunities to improve dods reprogramming process, gao/nsiad89138 washington, d.c.: july 24, 1989; budget reprogramming: department of defense process for',
2265:'reprogramming funds, gao/nsiad86164br washington, d.c.: july 16, 1986. 50 see department of defense financial management regulation 7000.14r, vol. 3 ch.',
2266:'6, reprogramming of dod appropriated funds aug. 1, 2000. page 231 gao04261sp appropriations law—vol. i chapter 2 the legal framework',
2267:'reprogramming request to the appropriations committees “where the item for which reprogramming is requested has been denied by the congress.”51',
2268:'the comptroller general has construed this provision as prohibiting a reprogramming request that would have the effect of restoring funds',
2269:'which had been specifically deleted in the legislative process; that is, the provision is not limited to the denial of',
2270:'an entire project. see u.s. general accounting office, legality of the navy’s expenditures for project sanguine during fiscal year 1974,',
2271:'lcd75315 washington, d.c.: jan. 20, 1975. under defense’s arrangement as reflected in its written instructions, reprogramming procedures apply to funding',
2272:'shifts between program elements, but not to shifts within a program element. thus, the denial of a request to reprogram',
2273:'funds from one program element to another does not preclude a military department from shifting available funds within the element.',
2274:'65 comp. gen. 360 1986. the level at which reprogramming procedures and restrictions will apply depends on applicable legislation, if',
2275:'any, and the arrangements an agency has worked out with its respective committees. in the absence of a statutory provision',
2276:'such as the defense provision noted above, a reprogramming that has the effect of restoring funds deleted in the legislative',
2277:'process has been held not legally objectionable. b195269, oct. 15, 1979. reprogramming frequently involves some form of notification to the',
2278:'appropriations and/or legislative committees. in a few cases, the notification process is prescribed by statute. however, in most cases, the',
2279:'committee review process is nonstatutory and derives from instructions in committee reports, hearings, or other correspondence. sometimes, in addition to',
2280:'notification, reprogramming arrangements also provide for committee approval. as in the case of transfer, under the supreme court’s decision in',
2281:'immigration & naturalization service v. chadha, 462 u.s. 919 1983, statutory committee approval or veto provisions are no longer permissible.',
2282:'however, an agency may continue to observe committee approval procedures as part of its informal arrangements, although they would not',
2283:'be legally binding. b196854.3, supra. 51 department of defense and emergency supplemental appropriations for recovery from and response to terrorist',
2284:'attacks on the united states act, 2002, pub. l. no. 107117, § 8005, 115 stat. 2230, 2247–48 jan. 10, 2002.',
2285:'page 232 gao04261sp appropriations law—vol. i chapter 2 the legal framework in sum, reprogramming procedures provide an element of congressional',
2286:'control over spending flexibility short of resort to the full legislative process. they are for the most part nonbinding, and',
2287:'compliance is largely a matter of “keeping faith” with the pertinent committees. 4. general provisions: when construed as permanent legislation',
2288:'appropriation acts, in addition to making appropriations, frequently contain a variety of provisions either restricting the availability of the appropriations',
2289:'or making them available for some particular use. such provisions come in two forms: a “provisos” attached directly to the',
2290:'appropriating language and b general provisions. a general provision may apply solely to the act in which it is contained',
2291:'“no part of any appropriation contained in this act shall be used …”, or it may have general applicability “no',
2292:'part of any appropriation contained in this or any other act shall be used …”.52 general provisions may be phrased',
2293:'in the form of restrictions or positive authority. provisions of this type are no less effective merely because they are',
2294:'contained in appropriation acts. it is settled that congress may repeal, amend, or suspend a statute by means of an',
2295:'appropriation bill, so long as its intention to do so is clear. robertson v. seattle audubon society, 503 u.s. 429,',
2296:'440 1992; mchugh v. rubin, 220 f.3d 53, 57 2nd cir. 2000; see also united states v. dickerson, 310 u.s.',
2297:'554 1940; cella v. united states, 208 f.2d 783, 790 7th cir. 1953, cert. denied, 347 u.s. 1016 1954; nlrb',
2298:'v. thompson products, inc., 141 f.2d 794, 797 9th cir. 1944; b300009, july 1, 2003; 41 op. att’y gen. 274,',
2299:'276 1956. congress likewise can enact general or permanent legislation in appropriation acts, but again its intent to do so',
2300:'must be clear. this point was made as follows in building & construction trades department, aflcio v. martin, 961 f.2d',
2301:'269, 273 d.c. cir., cert. denied, 506 u.s. 915 1992: 52 in recent decades, general provisions of governmentwide applicability—the “this',
2302:'or any other act” provisions—have often been consolidated in the annual treasury and general government appropriation acts. e.g., pub. l.',
2303:'no. 1087, div. j, title i, § 104, 117 stat. 11, 437 feb. 20, 2003 fiscal year 2003. beginning in',
2304:'2004, these provisions are now part of what is called the transportation, treasury, and independent agencies appropriations act. see h.r.',
2305:'2989, 108th cong. passed by the house on september 9, 2003, and the senate on october 23, 2003. page 233',
2306:'gao04261sp appropriations law—vol. i chapter 2 the legal framework “while appropriations are ‘acts of congress’ which can substantively change existing',
2307:'law, there is a very strong presumption that they do not … and that when they do, the change is',
2308:'only intended for one fiscal year.” in atlantic fish spotters ass’n v. evans, 321 f.3d 220, 224 1st cir. 2003,',
2309:'the court cautioned: “congress may create permanent, substantive law through an appropriations bill only if it is clear about its',
2310:'intentions. put another way, congress cannot rebut the presumption against permanence by sounding an uncertain trumpet.” as noted in chapter',
2311:'1, rules of both the senate and the house of representatives prohibit “legislating” in appropriation acts. however, this merely subjects',
2312:'the provision to a point of order and does not affect the validity of the legislation if the point of',
2313:'order is not raised, or is raised and not sustained. thus, once a given provision has been enacted into law,',
2314:'the question of whether it is “general legislation” or merely a restriction on the use of an appropriation, that is,',
2315:'whether it might have been subject to a point of order, is academic. this section deals with the question of',
2316:'when provisos or general provisions appearing in appropriation acts can be construed as permanent legislation. since an appropriation act is',
2317:'made for a particular fiscal year, the starting presumption is that everything contained in the act is effective only for',
2318:'the fiscal year covered. thus, the rule is: a provision contained in an annual appropriation act is not to be',
2319:'construed to be permanent legislation unless the language used therein or the nature of the provision makes it clear that',
2320:'congress intended it to be permanent. the presumption can be overcome if the provision uses language indicating futurity or if',
2321:'the provision is of a general character bearing no relation to the object of the appropriation. 65 comp. gen. 588',
2322:'1986; 62 comp. gen. 54 1982; 36 comp. gen. 434 1956; 32 comp. gen. 11 1952; 24 comp. gen. 436',
2323:'1944; 10 comp. gen. 120 1930; 5 comp. gen. 810 1926; 7 comp. dec. 838 1901. in analyzing a particular',
2324:'provision, the starting point in ascertaining congress’s intent is, as it must be, the language of the statute. the question',
2325:'to ask is whether the provision uses “words of futurity.” the most common word of futurity is “hereafter” and provisions',
2326:'using this term have often been construed as permanent. for specific examples, see cella v. united page 234 gao04261sp appropriations',
2327:'law—vol. i chapter 2 the legal framework states, 208 f.2d at 790; 70 comp. gen. 351 1991; 26 comp. gen.',
2328:'354, 357 1946; 2 comp. gen. 535 1923; 11 comp. dec. 800 1905; b108245, mar. 19, 1952; b100983, feb. 8,',
2329:'1951; b76782, june 10, 1948. however, use of the word hereafter may not guarantee that an appropriation act provision will',
2330:'be found to constitute permanent law. thus, in auburn housing authority v. martinez, 277 f.3d 138 2nd cir. 2002, the',
2331:'court declined to give permanent effect to a provision that included the word hereafter. the court acknowledged that hereafter generally',
2332:'denoted futurity, but held that this was not sufficient to establish permanence in the circumstances of that case. to read',
2333:'hereafter as giving permanence to one provision would have resulted in repealing another provision enacted in the same act.53 the',
2334:'court concluded that this result was not what congress had intended. as auburn housing authority indicates, mere use of the',
2335:'word hereafter may not be adequate as an indication of future effect to establish permanence. other facts such as the',
2336:'precise location of the word hereafter and the sense in which it is used are also important. moreover, the use',
2337:'of the word hereafter may not be sufficient, for example, if it appears only in an exception clause and not',
2338:'in the operative portion of the provision, b228838, sept. 16, 1987, or if it is used in a way that',
2339:'does not necessarily connote futurity beyond the end of the fiscal year. williams v. united states, 240 f.3d 1019, 1063',
2340:'fed. cir. 2001. words of futurity other than hereafter have also been deemed sufficient. thus, there is no significant difference',
2341:'in meaning between hereafter and “after the date of approval of this act.” 65 comp. gen. at 589; 36 comp.',
2342:'gen. at 436; b209583, jan. 18, 1983. using a specific date rather than a general reference to the date of',
2343:'enactment produces the same result. b287488, june 19, 2001; b57539, may 3, 1946. “henceforth” may also do the job. b209583,',
2344:'supra. so may specific references to future fiscal years. b208354, aug. 10, 1982. on the other hand, the word “hereinafter”',
2345:'was not considered synonymous with hereafter by the first circuit court of appeals and was not deemed to establish a',
2346:'permanent provision. atlantic fish spotters ass’n, supra. rather, the court held that hereinafter is 53 the appropriation provision in auburn',
2347:'housing authority was aimed at countering another provision in the very same act. thus, the court reasoned that the presumption',
2348:'against repeal by implication was particularly strong in this case. id. at 146. the court also contrasted the hereafter provision',
2349:'with another provision in the same act that was more explicit as to permanence. the latter provision read in part:',
2350:'“[t]his subsection shall apply to fiscal year 1999 and each fiscal year thereafter.” id. at 146–47. page 235 gao04261sp appropriations',
2351:'law—vol. i chapter 2 the legal framework universally understood to refer only to what follows in the same writing i.e.,',
2352:'statute. 321 f.3d at 225–26. in 24 comp. gen. 436, the comptroller general viewed the words “at any time” as',
2353:'words of futurity in a provision which authorized reduced transportation rates to military personnel who were “given furloughs at any',
2354:'time.” in that decision, however, the conclusion of permanence was further supported by the fact that congress appropriated funds to',
2355:'carry out the provision in the following year as well and did not repeat the provision but merely referred to',
2356:'it. the words “or any other act” in a provision addressing funds appropriated in or made available by “this or',
2357:'any other act” are not words of futurity. they merely refer to any other appropriation act for the same fiscal',
2358:'year. williams v. united states, 240 f.3d at 1063; 65 comp. gen. 588; b230110, apr. 11, 1988; b228838, supra; b145492,',
2359:'sept. 21, 1976.54 see also a88073, aug. 19, 1937 “this or any other appropriation”. similarly, the words “notwithstanding any other',
2360:'provision of law” are not words of futurity and, standing alone, offer no indication as to the duration of the',
2361:'provision. b271412, june 13, 1996; b208705, sept. 14, 1982. the words “this or any other act” may be used in',
2362:'conjunction with other language that makes the result, one way or the other, indisputable. the provision is clearly not permanent',
2363:'if the phrase “during the current fiscal year” is added. norcross v. united states, 142 ct. cl. 763 1958. addition',
2364:'of the phrase “with respect to any fiscal year” makes the provision permanent. b230110, supra. if words of futurity indicate',
2365:'permanence, it follows that a proviso or general provision that does not contain words of futurity will generally not be',
2366:'construed as permanent. 65 comp. gen. 588; 32 comp. gen. 11; 20 comp. gen. 322 1940; 10 comp. gen. 120;',
2367:'5 comp. gen. 810; 3 comp. gen. 319 1923; b209583, supra; b208705, supra; b66513, may 26, 1947; a18614, may 25,',
2368:'1927. the courts have applied the same analysis. see united states v. vulte, 233 u.s. 509, 514 1914; minis v.',
2369:'united states, 40 u.s. 15 pet. 423 1841; bristolmyers squibb company v. royce 54 one early case found the words',
2370:'“or any other act” sufficient words of futurity. 26 comp. dec. 1066 1920. a later decision, b37032, oct. 5, 1943,',
2371:'regarded their effect as inconclusive. both of these cases must be regarded as implicitly modified by the consistent position expressed',
2372:'in the more recent decisions. page 236 gao04261sp appropriations law—vol. i chapter 2 the legal framework laboratories, inc., 69 f.3d',
2373:'1130, 1136 fed. cir. 1995; united states v. international business machines corp., 892 f.2d 1006, 1009 fed. cir. 1989; nlrb',
2374:'v. thompson products, inc., supra; city of hialeah v. united states housing authority, 340 f. supp. 885 s.d. fla. 1971.',
2375:'in particular, the absence of the word hereafter is viewed as telling evidence that congress did not intend a provision',
2376:'to be permanent. e.g., building & construction trades department, 961 f.2d at 273; international business machines corp., supra; department of',
2377:'justice, office of legal counsel memorandum for james s. gilliland, general counsel, department of agriculture, severability and duration of appropriations',
2378:'rider concerning frozen poultry regulations, june 4, 1996. for example, the court in building & construction trades department concluded that',
2379:'the absence of the word hereafter in an appropriation provision was more significant than the inclusion of other language that',
2380:'might have indicated permanence. as the preceding paragraphs indicate, the language of the statute is the crucial determinant. however, other',
2381:'factors may also be taken into consideration. thus, the repeated inclusion of a provision in annual appropriation acts indicates that',
2382:'it is not considered or intended by congress to be permanent. 32 comp. gen. 11; 10 comp. gen. 120; b270723,',
2383:'apr. 15, 1996; a89279, oct. 26, 1937; 41 op. att’y gen. at 279–80. however, where adequate words of futurity exist,',
2384:'the repetition of a provision in the following year’s appropriation act has been viewed simply as an “excess of caution.”',
2385:'36 comp. gen. at 436. this factor is of limited usefulness, since the failure to repeat in subsequent appropriation acts',
2386:'a provision that does not contain words of futurity can also be viewed as an indication that congress did not',
2387:'consider it to be permanent and simply did not want it to continue. see 18 comp. gen. 37 1938; a88073,',
2388:'supra. thus, if the provision does not contain words of futurity, then repetition or nonrepetition lead to the same result—that',
2389:'the provision is not permanent. if the provision does contain words of futurity, then nonrepetition indicates permanence but repetition, although',
2390:'it suggests nonpermanence, is inconclusive. the inclusion of a provision in the united states code is relevant as an indication',
2391:'of permanence but is not controlling. 36 comp. gen. 434; 24 comp. gen. 436. failure to include a provision in',
2392:'the code would appear to be of no significance. a reference by the codifiers to the failure to reenact a',
2393:'provision suggests nonpermanence. 41 op. att’y gen. at 280–81. page 237 gao04261sp appropriations law—vol. i chapter 2 the legal framework',
2394:'legislative history is also relevant, but has been used for the most part to support a conclusion based on the',
2395:'presence or absence of words of futurity. see cella v. united states, 208 f.2d at 790 n.1; nlrb v. thompson',
2396:'products, 141 f.2d at 798; 65 comp. gen. 588; b277719, aug. 20, 1997; b209583, supra; b208705, supra; b108245, supra; b57539,',
2397:'supra. in b192973, oct. 11, 1978, a general provision requiring the submission of a report “annually to the congress” was',
2398:'held not permanent in view of conflicting expressions of congressional intent. legislative history by itself has not been used to',
2399:'find futurity where it is missing in the statutory language. see building & construction trades department, 961 f.2d at 274.',
2400:'the degree of relationship between a given provision and the object of the appropriation act in which it appears or',
2401:'the appropriating language to which it is appended is a factor to be considered. if the provision bears no direct',
2402:'relationship to the appropriation act in which it appears, this is an indication of permanence. for example, a provision prohibiting',
2403:'the retroactive application of an energy tax credit provision in the internal revenue code was found sufficiently unrelated to the',
2404:'rest of the act in which it appeared, a supplemental appropriations act, to support a conclusion of permanence. b214058, feb.',
2405:'1, 1984. see also 62 comp. gen. at 56; 32 comp. gen. 11; 26 comp. gen. at 357; b37032, supra;',
2406:'a88073, supra. the closer the relationship, the less likely it is that the provision will be viewed as permanent. a',
2407:'determination under rules of the senate that a proviso is germane to the subject matter of the appropriation bill will',
2408:'negate an argument that the proviso is sufficiently unrelated as to suggest permanence. b208705, supra. the phrasing of a provision',
2409:'as positive authorization rather than a restriction on the use of an appropriation is an indication of permanence, but usually',
2410:'has been considered in conjunction with a finding of adequate words of futurity. 36 comp. gen. 434; 24 comp. gen.',
2411:'436. an early decision, 17 comp. dec. 146 1910, held a proviso to be permanent based solely on the fact',
2412:'that it was not phrased as a restriction on the use of the appropriation to which it was attached, but',
2413:'this decision seems inconsistent with the weight of authority and certainly with the supreme court’s decision in minis v. united',
2414:'states, cited above. finally, a provision may be construed as permanent if construing it as temporary would render the provision',
2415:'meaningless or produce an absurd result. 65 comp. gen. 352 1986; 62 comp. gen. 54; b200923, oct. 1, 1982. these',
2416:'decisions dealt with a general provision designed to prohibit costof page 238 gao04261sp appropriations law—vol. i chapter 2 the legal',
2417:'framework living pay increases for federal judges “except as may be specifically authorized by act of congress hereafter enacted.” pub.',
2418:'l. no. 9792, § 140, 95 stat. 1183, 1200 dec. 15, 1981. the provision appeared in a fiscal year 1982',
2419:'continuing resolution, which expired on september 30, 1982. the next applicable pay increase would have been effective october 1, 1982.',
2420:'thus, if the provision were not construed as permanent, it would have been meaningless “since it would have been enacted',
2421:'to prevent increases during a period when no increases were authorized to be made.” 62 comp. gen. at 56–57.55 similarly,',
2422:'a provision was held permanent in 9 comp. gen. 248 1929 although it contained no words of futurity, because it',
2423:'was to become effective on the last day of the fiscal year and an alternative construction would have rendered it',
2424:'effective for only 1 day, clearly not the legislative intent. see also 65 comp. gen. at 590; b214058, supra; b270723,',
2425:'supra. in sum, the six additional factors mentioned above are all relevant indicia of whether a given provision should be',
2426:'construed as permanent. however, the presence or absence of words of futurity remains the crucial factor, and the additional factors',
2427:'have been used for the most part to support a conclusion based primarily on this presence or absence. four of',
2428:'the factors—occurrence or nonoccurrence in subsequent appropriation acts, inclusion in united states code, legislative history, and phrasing as positive authorization—have',
2429:'never been used as the sole basis for finding permanence in a provision without words of futurity. the two remaining',
2430:'factors—relationship to rest of statute and meaningless or absurd result— can be used to find permanence in the absence of',
2431:'words of futurity, but the conclusion is almost invariably supported by at least one of the other factors, such as',
2432:'legislative history. 55 in williams v. united states, 240 f.3d at 1026, the court of appeals for the federal circuit',
2433:'held that the provision addressed in these decisions was not permanent, referring to the “unmistakable language of public law 9792',
2434:'… terminating the effect of section 140 in 1982.” the court did not address the consequence, if any, of congress’s',
2435:'use of the word hereafter. the court did concede, however, that “even if section 140 did not expire as of',
2436:'september 30, 1982, the 1989 act falls well within the specific exception in that statute for an ‘act of congress',
2437:'hereafter enacted.’” id. at 1027. the 1989 act the court referred to is the ethics reform act, pub. l. no.',
2438:'101194, 103 stat. 1716 nov. 30, 1989, which entitled federal judges to costofliving pay increases whenever federal employees received a',
2439:'costofliving increase. the 1989 act was enacted after the series of gao decisions was issued that addressed the fiscal year',
2440:'1982 law. page 239 gao04261sp appropriations law—vol. i chapter 2 the legal framework “as usual, this court has been dealt',
2441:'the difficult hand which c. relationship of results when congress does not get its ‘act[s]’ together.” appropriations to other types',
2442:'of american federation of government employees, local 1945 v. cheney, cv92pt2453e, n.d. ala., dec. 21, 1992 propst, j., slip op',
2443:'at 8. legislation 1. distinction between authorization and appropriation appropriation acts must be distinguished from two other types of legislation:',
2444:'“enabling” or “organic” legislation and “appropriation authorization” legislation. enabling or organic legislation is legislation that creates an agency, establishes a',
2445:'program, or prescribes a function, such as the department of education organization act or the federal water pollution control act.',
2446:'while the organic legislation may provide the necessary authority to conduct the program or activity, it, with relatively rare exceptions,',
2447:'does not provide any money. appropriation authorization legislation, as the name implies, is legislation which authorizes the appropriation of funds',
2448:'to implement the organic legislation. it may be included as part of the organic legislation or it may be separate.',
2449:'as a general proposition, it too does not give the agency any actual money to spend. with certain exceptions discussed',
2450:'in section b.1 of this chapter, only the appropriation act itself permits the withdrawal of funds from the treasury. the',
2451:'principle has been stated as follows: “the mere authorization of an appropriation does not authorize expenditures on the faith thereof',
2452:'or the making of contracts obligating the money authorized to be appropriated.” 16 comp. gen. 1007, 1008 1937. restated, an',
2453:'authorization of appropriations does not constitute an appropriation of public funds, but contemplates subsequent legislation by congress actually appropriating the',
2454:'funds. 35 comp. gen. 306 1955; 27 comp. dec. 923 1921.56 like the organic legislation, authorization legislation is considered and',
2455:'reported by the committees with legislative jurisdiction over the particular 56 see also 67 comp. gen. 332 1988; 37 comp.',
2456:'gen. 732 1958; 26 comp. gen. 452 1947; 15 comp. gen. 802 1936; 4 comp. gen. 219 1924; a27765, july',
2457:'8, 1929. page 240 gao04261sp appropriations law—vol. i chapter 2 the legal framework subject matter, whereas the appropriation bills are',
2458:'exclusively within the jurisdiction of the appropriations committees. there is no general requirement, either constitutional or statutory, that an appropriation',
2459:'act be preceded by a specific authorization act. e.g., 71 comp. gen. 378, 380 1992. the existence of a statute',
2460:'organic legislation imposing substantive functions upon an agency that require funding for their performance is itself sufficient authorization for the',
2461:'necessary appropriations. b173832, july 16, 1976; b173832, aug. 1, 1975; b111810, mar. 8, 1974. however, statutory requirements for authorizations do',
2462:'exist in a number of specific situations. an example is section 660 of the department of energy organization act, 42',
2463:'u.s.c. § 7270 “appropriations to carry out the provisions of this chapter shall be subject to annual authorization”. another example',
2464:'is 10 u.s.c. § 114a, which provides that no funds may be appropriated for military construction, military procurement, and certain',
2465:'related research and development “unless funds therefor have been specifically authorized by law.” in addition, rules of the house of',
2466:'representatives prohibit appropriations for expenditures not previously authorized by law. see rule xxi2, rules of the house of representatives. the',
2467:'effect of this rule is to subject the offending appropriation to a point of order. a more limited provision exists',
2468:'in rule xvi, standing rules of the senate. the majority of appropriations today are preceded by some form of authorization',
2469:'although, as noted, it is not statutorily required in all cases. authorizations take many different forms, depending in part on',
2470:'whether they are contained in the organic legislation or are separate. authorizations contained in organic legislation may be “definite” setting',
2471:'dollar limits either in the aggregate or for specific fiscal years or “indefinite” authorizing “such sums as may be necessary',
2472:'to carry out the provisions of this act”. an indefinite authorization serves little purpose other than to comply with house',
2473:'rule xxi. appropriation authorizations enacted as separate legislation resemble appropriation acts in structure, for example, the annual department of defense',
2474:'authorization acts. an authorization act is basically a directive to congress itself, which congress is free to follow or alter',
2475:'up or down in the subsequent appropriation act. a statutory requirement for prior authorization is also essentially a congressional mandate',
2476:'to itself. thus, for example, if congress appropriates money to the defense department in violation of 10 u.s.c. page 241',
2477:'gao04261sp appropriations law—vol. i chapter 2 the legal framework § 114, there are no practical consequences. the appropriation is just',
2478:'as valid, and just as available for obligation, as if section 114 had been satisfied or did not exist. in',
2479:'sum, the typical sequence is: 1 organic legislation; 2 authorization of appropriations, if not contained in the organic legislation; and',
2480:'3 the appropriation act. while this may be the “normal” sequence, there are deviations and variations, and it is not',
2481:'always possible to neatly label a given piece of legislation. consider, for example, the following: “the secretary of the treasury',
2482:'is authorized and directed to pay to the secretary of the interior … for the benefit of the coushatta tribe',
2483:'of louisiana … out of any money in the treasury not otherwise appropriated, the sum of $1,300,000.”57 this is the',
2484:'first section of a law enacted to settle land claims by the coushatta tribe against the united states and to',
2485:'prescribe the use and distribution of the settlement funds. applying the test described above in section b.1, it is certainly',
2486:'an appropriation—it contains a specific direction to pay and designates the funds to be used—but, in a technical sense, it',
2487:'is not an appropriation act. also, it contains its own authorization. thus, we have an authorization and an appropriation combined',
2488:'in a statute that is neither an authorization act in the sense described above nor an appropriation act. general classifications',
2489:'may be useful and perhaps essential, but they should not be expected to cover all situations. 2. specific problem areas',
2490:'and the resolution of conflicts a. introduction appropriation acts, as we have seen, do not exist in a vacuum. they',
2491:'are enacted against the backdrop of program legislation and, in many cases, specific authorization acts. this section deals with two',
2492:'broad but closely related issues. first, what precisely can congress do in an appropriation act? is it limited to essentially',
2493:'“rubber stamping” what has previously been 57 pub. l. no. 100411, § 1a1, 102 stat. 1097 aug. 22, 1988. page',
2494:'242 gao04261sp appropriations law—vol. i chapter 2 the legal framework authorized? second, what does an agency do when faced with',
2495:'what it perceives to be an inconsistency between an appropriation act and some other statute? the remaining portions of this',
2496:'section raise these issues in a number of specific contexts. in this introduction, we present four important principles. the resolution',
2497:'of problems in the relationship of appropriation acts to other statutes will almost invariably lie in the application of one',
2498:'or more of these principles. first, as a general proposition, appropriations made to carry out authorizing laws “are made on',
2499:'the basis that the authorization acts in effect constitute an adjudication or legislative determination of the subject matter.” b151157, june',
2500:'27, 1963. thus, except as specified otherwise in the appropriation act, appropriations to carry out enabling or authorizing laws must',
2501:'be expended in strict accord with the original authorization both as to the amount of funds to be expended and',
2502:'the nature of the work authorized. 36 comp. gen. 240, 242 1956; b258000, aug. 31, 1994; b220682, feb. 21, 1986;',
2503:'b204874, july 28, 1982; b151157, supra; b125404, aug. 31, 1956. while it is true that one congress cannot bind a',
2504:'future congress, nor can it bind subsequent action by the same congress, an authorization act is more than an academic',
2505:'exercise and its requirements must be followed unless changed by subsequent legislation. second, congress is free to amend or repeal',
2506:'prior legislation as long as it does so directly and explicitly and does not violate the constitution. it is also',
2507:'possible for one statute to implicitly amend or repeal a prior statute, but it is firmly established that “repeal by',
2508:'implication” is disfavored, and statutes will be construed to avoid this result whenever reasonably possible. e.g., tennessee valley authority v.',
2509:'hill, 437 u.s. 153, 189–90 1978; morton v. mancari, 417 u.s. 535, 549 1974; posadas v. national city bank of',
2510:'new york, 296 u.s. 497, 503 1936; 72 comp. gen. 295, 297 1993; 68 comp. gen. 19, 22–23 1988; 64',
2511:'comp. gen. 142, 145 1984; 58 comp. gen. 687, 691–92 1979; b290011, mar. 25, 2002; b261589, mar. 6, 1996; b258163,',
2512:'sept. 29, 1994; b236057, may 9, 1990. repeals by implication are particularly disfavored in the appropriations context. robertson v. seattle',
2513:'audubon society, 503 u.s. 429, 440 1992. a repeal by implication will be found only where “the intention of the',
2514:'legislature to repeal [is] clear and manifest.” posadas, 296 u.s. at 503; b290011, supra; b236057, supra. the principle that implied',
2515:'repeals are disfavored applies with special weight when it is asserted that a general page 243 gao04261sp appropriations law—vol. i',
2516:'chapter 2 the legal framework statute repeals a more specific statute. 72 comp. gen. at 297 and cases cited. a',
2517:'corollary to the “cardinal rule” against repeal by implication, or perhaps another way of saying the same thing, is the',
2518:'rule of construction that statutes should be construed harmoniously so as to give maximum effect to both wherever possible. e.g.,',
2519:'posadas, 296 u.s. at 503; strawser v. atkins, 290 f.3d 720 4th cir., cert. denied, 537 u.s. 1045 2002; 53',
2520:'comp. gen. 853, 856 1974; b290011, supra; b208593.6, dec. 22, 1988. see b258000, supra, for an example of harmonizing ambiguous',
2521:'appropriation and authorization provisions in order to effectuate congressional intent. third, if two statutes are in irreconcilable conflict, the more',
2522:'recent statute, as the latest expression of congress, governs. as one court concluded in a statement illustrating the eloquence of',
2523:'simplicity, “[t]he statutes are thus in conflict, the earlier permitting and the later prohibiting,” so the later statute supersedes the',
2524:'earlier. eisenberg v. corning, 179 f.2d 275, 277 d.c. cir. 1949. in a sense, the “last in time” rule is',
2525:'yet another way of expressing the repeal by implication principle. we state it separately to highlight its narrowness: it applies',
2526:'only when the two statutes cannot be reconciled in any reasonable manner, and then only to the extent of the',
2527:'conflict. e.g., posadas, 296 u.s. at 503; b203900, feb. 2, 1989; b226389, nov. 14, 1988; b214172, july 10, 1984, aff’d',
2528:'upon reconsideration, 64 comp. gen. 282 1985. we will see later in this section that while the last in time',
2529:'rule can be stated with eloquent simplicity, its application is not always so simple. the fourth principle we state in',
2530:'two parts: first, despite the occasional comment to the contrary in judicial decisions a few of which we will note',
2531:'later, congress can and does “legislate” in appropriation acts. e.g., preterm, inc. v. dukakis, 591 f.2d 121 1st cir., cert.',
2532:'denied, 441 u.s. 952 1979; friends of the earth v. armstrong, 485 f.2d 1 10th cir. 1973, cert. denied, 414',
2533:'u.s. 1171 1974; eisenberg v. corning, supra; tayloe v. kjaer, 171 f.2d 343 d.c. cir. 1948. see also the dickerson,',
2534:'cella, and thompson products cases cited above in section b.4, and the discussion of the congressional power of the purse',
2535:'in chapter 2, section b. it may well be that the device is “unusual and frowned upon.” preterm, 591 f.2d',
2536:'at 131; building & construction trades department, aflcio v. martin, 961 f.2d 269, 273 d.c. cir., cert. denied, 506 u.s.',
2537:'915 1992 “while appropriations are ‘acts of congress’ page 244 gao04261sp appropriations law—vol. i chapter 2 the legal framework which',
2538:'can substantively change existing law, there is a very strong presumption that they do not … and that when they',
2539:'do, the change is only intended for one fiscal year.”. it also may well be that the appropriation act will',
2540:'be narrowly construed when it is in apparent conflict with authorizing legislation. calloway v. district of columbia, 216 f.3d 1,',
2541:'9 d.c. cir. 2000; donovan v. carolina stalite co., 734 f.2d 1547, 1558 d.c. cir. 1984. nevertheless, appropriation acts are,',
2542:'like any other statute, passed by both houses of congress and either signed by the president or enacted over a',
2543:'presidential veto. as such, and subject of course to constitutional strictures, they are “just as effective a way to legislate',
2544:'as are ordinary bills relating to a particular subject.” friends of the earth, 485 f.2d at 9; envirocare of utah',
2545:'inc. v. united states, 44 fed. cl. 474, 482 1999. second, legislative history is not legislation. as useful and important',
2546:'as legislative history may be in resolving ambiguities and determining congressional intent, it is the language of the appropriation act,',
2547:'and not the language of its legislative history, that is enacted into law. e.g., shannon v. united states, 512 u.s.',
2548:'573, 583 1994 declining to give effect to “legislative history that is in no way anchored in the text of',
2549:'the statute.”. as the supreme court stated in a case previously cited, which we will discuss in more detail later:',
2550:'“expressions of committees dealing with requests for appropriations cannot be equated with statutes enacted by congress … .” tennessee valley',
2551:'authority v. hill, 437 u.s. at 191; see also lincoln v. vigil, 508 u.s. 182, 192 1993; thompson v. cherokee',
2552:'nation of oklahoma, 334 f.3d 1075 fed. cir. 2003. these, then, are the “guiding principles” that will be applied in',
2553:'various combinations and configurations to analyze and resolve the problem areas identified in the remainder of this section. for the',
2554:'most part, our subsequent discussion will merely note the applicable principles. a useful supplemental reference on many of the topics',
2555:'we discuss is louis fisher, the authorizationappropriation process in congress: formal rules and informal practices, 29 cath. u.l. rev. 51',
2556:'1979. page 245 gao04261sp appropriations law—vol. i b. variations in amount chapter 2 the legal framework 1 appropriation exceeds authorization',
2557:'generally speaking, congress is free to appropriate more money for a given object than the amount previously authorized. as the',
2558:'comptroller general stated in a brief letter to a member of congress: “while legislation providing for an appropriation of funds',
2559:'in excess of the amount contained in a related authorization act apparently would be subject to a point of order',
2560:'under rule 21 of the rules of the house of representatives, there would be no basis on which we could',
2561:'question otherwise proper expenditures of funds actually appropriated.” b123469, apr. 14, 1955. the governing principle was stated as follows in',
2562:'36 comp. gen. 240, 242 1956: “it is fundamental … that one congress cannot bind a future congress and that',
2563:'the congress has full power to make an appropriation in excess of a cost limitation contained in the original authorization',
2564:'act. this authority is exercised as an incident to the power of the congress to appropriate and regulate expenditures of',
2565:'the public money.” if we are dealing with a lineitem appropriation or a specific earmark in a lumpsum appropriation, the',
2566:'quoted statement would appear beyond dispute. however, complications arise where the authorization for a given item is specific and a',
2567:'subsequent lumpsum appropriation includes a higher amount for that item specified only in legislative history and not in the appropriation',
2568:'act itself. in this situation, the rule that one congress cannot bind a future congress or later action by the',
2569:'same congress must be modified somewhat by the rule against repeal by implication. the line of demarcation, however, is not',
2570:'precisely defined. in 36 comp. gen. 240, congress had authorized the construction of two bridges across the potomac river “at',
2571:'a cost not to exceed” $7 million. a subsequent appropriation act made a lumpsum appropriation that included funds for the',
2572:'bridge construction specified in legislative history but not in the appropriation act itself in excess of the amount authorized. the',
2573:'decision concluded that the appropriation, as the latest expression of congress on the matter, was available for expenditure. similarly, it',
2574:'was page 246 gao04261sp appropriations law—vol. i chapter 2 the legal framework held in b148736, sept. 15, 1977, that the',
2575:'national park service could expend its lumpsum appropriation for planning and construction of parks even though the expenditures for specific',
2576:'parks would exceed amounts authorized to be appropriated for those parks. both of these cases were distinguished in 64 comp.',
2577:'gen. 282 1985, which affirmed a prior decision, b214172, july 10, 1984. authorizing legislation for the small business administration sba',
2578:'provided specific funding levels for certain sba programs. sba’s 1984 appropriation act contained a lumpsum appropriation for the programs which,',
2579:'according to the conference report, included amounts in excess of the funding levels specified in the authorization. relying in part',
2580:'on tennessee valley authority v. hill, 437 u.s. 153 1978, gao concluded that the two statutes were not in conflict,',
2581:'that the appropriation did not implicitly repeal or amend the authorizations, and that the spending levels in the authorization were',
2582:'controlling. the two prior cases were distinguished as being limited in scope and dealing with different factual situations. 64 comp.',
2583:'gen. at 285. for example, it was clear in the prior cases that congress was knowingly providing funds in excess',
2584:'of the authorization ceilings. in contrast, the sba appropriation made explicit reference to the authorizing statute, thus suggesting that congress',
2585:'did not intend that the appropriation be inconsistent with the authorized spending levels. id. at 286–87. 2 appropriation less than',
2586:'authorization congress is free to appropriate less than an amount authorized either in an authorization act or in program legislation,',
2587:'again, as in the case of exceeding an authorization, at least where it does so directly. e.g., 53 comp. gen.',
2588:'695 1974. this includes the failure to fund a program at all, that is, not to appropriate any funds. united',
2589:'states v. dickerson, 310 u.s. 554 1940. a case in point is city of los angeles v. adams, 556 f.2d',
2590:'40 d.c. cir. 1977. the airport and airway development act of 1970 authorized airport development grants “in aggregate amounts not',
2591:'less than” specified dollar amounts for specified fiscal years, and provided an apportionment formula. pub. l. no. 91258, title i,',
2592:'84 stat. 219 may 21, 1970. subsequent appropriation acts included specific limitations on the aggregate amounts to be available for',
2593:'the grants, less than the amounts authorized. the court concluded that both laws could be given effect by limiting the',
2594:'amounts available to those specified in the appropriation acts, but requiring that page 247 gao04261sp appropriations law—vol. i chapter 2',
2595:'the legal framework they be distributed in accordance with the formula of the authorizing legislation. in holding the appropriation limits',
2596:'controlling, the court said: “according to its own rules, congress is not supposed to use appropriations measures as vehicles for',
2597:'the amendment of general laws, including revision of expenditure authorization… . where congress chooses to do so, however, we are',
2598:'bound to follow congress’s last word on the matter even in an appropriations law.” id. at 48–49. relying on city',
2599:'of los angeles v. adams, the court in ramah navajo school board, inc. v. babbitt, 87 f.3d 1338 d.c. cir.',
2600:'1996, held that, while appropriations in amounts less than envisioned in authorization acts control, an agency must still adhere as',
2601:'much as possible to the authorizing statute in distributing such funds: “[i]t is clear that the congress responsible for the',
2602:'isda [indian selfdetermination act] did not intend, in the case of insufficient funding, for the numerous detailed provisions of the',
2603:'act to be shunted aside by a secretary exercising total discretion in allocation of the funds. nor, as the legislative',
2604:'history shows, did the 1995 congress which appropriated insufficient funds intend for its shortfall to eviscerate the substantive provisions of',
2605:'the earlier act.” 87 f.3d at 1349 emphasis in original. where the amount authorized to be appropriated is mandatory rather',
2606:'than discretionary, congress can still appropriate less, or can suspend or repeal the authorizing legislation, as long as the intent',
2607:'to suspend or repeal the authorization is clear. the power is considerably diminished, however, with respect to entitlements that have',
2608:'already vested. the distinction is made clear in the following passage from the supreme court’s decision in united states v.',
2609:'larionoff, 431 u.s. 864, 879 1977: “no one disputes that congress may prospectively reduce the pay of members of the',
2610:'armed forces, even if that reduction deprived members of benefits they had expected to be able to earn… . it',
2611:'is quite a different matter, however, page 248 gao04261sp appropriations law—vol. i chapter 2 the legal framework for congress to',
2612:'deprive a service member of pay due for services already performed, but still owing. in that case, the congressional action',
2613:'would appear in a different constitutional light.” several earlier cases provide concrete illustrations of what congress can and cannot do',
2614:'in an appropriation act to reduce or eliminate a nonvested mandatory authorization. in united states v. fisher, 109 u.s. 143',
2615:'1883, permanent legislation set the salaries of certain territorial judges. congress subsequently appropriated a lesser amount, “in full compensation” for',
2616:'that particular year. the court held that congress had the power to reduce the salaries, and had effectively done so.',
2617:'“it is impossible that both acts should stand. no ingenuity can reconcile them. the later act must therefore prevail… .”',
2618:'id. at 146. see also united states v. mitchell, 109 u.s. 146 1883. in the dickerson case cited above, the',
2619:'court found a mandatory authorization effectively suspended by a provision in an appropriation act prohibiting the use of funds for',
2620:'the payment in question “notwithstanding the applicable portions of” the authorizing legislation. in the cases in the preceding paragraph, the',
2621:'“reduction by appropriation” was effective because the intent of the congressional action was unmistakable. the mere failure to appropriate sufficient',
2622:'funds is not enough. in united states v. langston, 118 u.s. 389 1886, for example, the court refused to find',
2623:'a repeal by implication in “subsequent enactments which merely appropriated a less amount … and which contained no words that',
2624:'expressly, or by clear implication, modified or repealed the previous law.” id. at 394. a similar holding is united states',
2625:'v. vulte, 233 u.s. 509 1914. a failure to appropriate in this type of situation will prevent administrative agencies from',
2626:'making payment, but, as in langston and vulte, is unlikely to prevent recovery by way of a lawsuit. see also',
2627:'wetsel oviatt lumber co., inc. v. united states, 38 fed. cl. 563, 570–571 1997; new york airways, inc. v. united',
2628:'states, 369 f.2d 743 ct. cl. 1966; gibney v. united states, 114 ct. cl. 38 1949. thus, appropriating less than',
2629:'the amount of a nonvested mandatory authorization, including not appropriating any funds for it, will be effective under the “last',
2630:'in time” rule as long as the intent to suspend or repeal the authorization is clear. however, by virtue of',
2631:'the rule against repeal by implication, a mere failure to appropriate sufficient funds will not be construed as amending or',
2632:'repealing prior authorizing legislation. page 249 gao04261sp appropriations law—vol. i chapter 2 the legal framework another complication arises when an',
2633:'authorization act creates what would otherwise be an entitlement to funds, but then makes that entitlement “subject to the availability',
2634:'of appropriations.” a case in point is the indian selfdetermination and education assistance act, 25 u.s.c. §§ 450–450n. the complex',
2635:'provisions of the act in effect guarantee indian tribes a certain level of reimbursement for their costs in administering federal',
2636:'programs. however, the act makes this guarantee subject to the availability of appropriations and further provides that the secretary of',
2637:'the interior is not required to reduce program funding for other tribes or tribal organizations in order to satisfy this',
2638:'guarantee. see 25 u.s.c. § 450j1a and b. these provisions have spawned much litigation, including the ramah navajo school board',
2639:'case, discussed previously. the courts have agreed that the “subject to the availability of appropriations” language conditions the act’s entitlement,',
2640:'so that the reimbursement amounts intended by the act must be reduced where congress has clearly appropriated insufficient funds to',
2641:'meet them in full. see in addition to ramah: thompson v. cherokee nation of oklahoma, 334 f.3d 1075 fed. cir.',
2642:'2003 cherokee nation ii; cherokee nation of oklahoma v. thompson, 311 f.3d 1054 10th cir. 2002 cherokee nation i; shoshonebannock',
2643:'tribes of the fort hall reservation v. thompson, 279 f.3d 660 9th cir. 2002; and babbitt v. oglala sioux tribal',
2644:'public safety department, 194 f.3d 1374 fed. cir. 1999, cert. denied, 530 u.s. 1203 2000. however, the courts differ on',
2645:'whether congress did or did not provide insufficient funds for particular fiscal years. compare cherokee nation ii with cherokee nation',
2646:'i and shoshonebannock. 3 earmarks in authorization act in chapter 6, section b, we set forth the various types of',
2647:'language congress uses in appropriation acts when it wants to “earmark” a portion of a lump sum appropriation as either',
2648:'a maximum or a minimum to be spent on some particular object. these same types of earmarking language can be',
2649:'used in authorization acts. a number of cases have considered the question of whether there is a conflict when an',
2650:'authorization establishes a minimum earmark “not less than,” “shall be available only”, and the related appropriation is a lump sum',
2651:'appropriation which does not expressly mention the earmark. is the agency in this situation required to observe the earmark? applying',
2652:'the principle that an appropriation must be expended in accordance with the related authorization unless the appropriation act provides otherwise,',
2653:'gao page 250 gao04261sp appropriations law—vol. i chapter 2 the legal framework has concluded that the agency must observe the',
2654:'earmark. 64 comp. gen. 388 1985; b220682, feb. 21, 1986 “an earmark in an authorization act must be followed where',
2655:'a lump sum is appropriated pursuant to the authorization”; b207343, aug. 18, 1982; b193282, dec. 21, 1978. see also b131935,',
2656:'mar. 17, 1986. this result applies even though following the earmark will drastically reduce the amount of funds available for',
2657:'nonearmarked programs funded under the same appropriation. 64 comp. gen. at 391. these cases can also be viewed as another',
2658:'application of the rule against repeal by implication. if congress expressly appropriates an amount at variance with a previously enacted',
2659:'authorization earmark, the appropriation will control under the last in time rule. for example, in 53 comp. gen. 695 1974,',
2660:'an authorization act had expressly earmarked $18 million for the united nations international children’s emergency fund unicef for specific fiscal',
2661:'years. a subsequent appropriation act provided a lump sum, out of which only $15 million was earmarked for unicef. the',
2662:'comptroller general concluded that the $15 million specified in the appropriation act was controlling and represented the maximum available for',
2663:'unicef for that fiscal year. c. variations in purpose as noted previously, it is only the appropriation, and not the',
2664:'authorization by itself, that permits the incurring of obligations and the making of expenditures. it follows that an authorization does',
2665:'not, as a general proposition, expand the scope of availability of appropriations beyond what is permissible under the terms of',
2666:'the appropriation act. the authorized purpose must be implemented either by a specific appropriation or by inclusion in a broader',
2667:'lumpsum appropriation. thus, an appropriation made for specific purposes is not available for related but more extended purposes contained in',
2668:'the authorization act but not included in the appropriation. 19 comp. gen. 961 1940. see also 37 comp. gen. 732',
2669:'1958; 35 comp. gen. 306 1955; 26 comp. gen. 452 1947. in addition to simply failing to appropriate funds for',
2670:'an authorized purpose, congress can expressly restrict the use of an appropriation for a purpose or purposes included in the',
2671:'authorization. e.g., b24341, apr. 1, 1942 “whatever may have been the intention of the original enabling act it must give',
2672:'way to the express provisions of the later act which appropriated funds but limited their use”. page 251 gao04261sp appropriations',
2673:'law—vol. i d. period of availability chapter 2 the legal framework similarly, by express provision in an appropriation act, congress',
2674:'can expand authorized purposes. in 67 comp. gen. 401 1988, for example, an appropriation expressly included two mandatory earmarks for',
2675:'projects beyond the scope of the related authorization. noting that “the appropriation language provides its own expanded authorization for these',
2676:'programs,” gao concluded that the agency was required to reserve funds for the two mandatory earmarks before committing the balance',
2677:'of the appropriation for discretionary expenditures. except to the extent congress expressly expands or limits authorized purposes in the appropriation',
2678:'act, the appropriation must be used in accordance with the authorization act in terms of purpose. thus, in b125404, aug.',
2679:'31, 1956, it was held that an appropriation to construct a bridge across the potomac river pursuant to a statute',
2680:'authorizing construction of the bridge and prescribing its location was not available to construct the bridge at a slightly different',
2681:'location even though the planners favored the alternate location. similarly, in b193307, feb. 6, 1979, the flood control act of',
2682:'1970 authorized construction of a dam and reservoir for the ellicott creek project in new york. subsequently, legislation was proposed',
2683:'to authorize channel construction instead of the dam and reservoir, but was not enacted. a continuing resolution made a lumpsum',
2684:'appropriation for flood control projects “authorized by law.” the comptroller general found that the appropriation did not repeal the prior',
2685:'authorization, and that therefore, the funds could not properly be used for the alternative channel construction. an authorization of appropriations,',
2686:'like an appropriation itself, may authorize appropriations to be made on a multiple year or noyear, as well as fiscal',
2687:'year, basis. the question we address here is the extent to which the period of availability specified in an authorization',
2688:'or enabling act is controlling. congress can, in an appropriation act, enact a different period of availability than that specified',
2689:'in the authorization. the implications for an appropriation of language in the authorization of that appropriation specifying a period of',
2690:'availability for the appropriation being authorized is a matter of statutory construction. thus, an appropriation of funds “to remain available',
2691:'until expended” noyear was found controlling over a provision in the authorizing legislation that authorized appropriations on a 2year basis.',
2692:'b182101, oct. 16, 1974. see also b149372, b158195, apr. 29, 1969 2year appropriation of presidential transition funds held controlling notwithstanding',
2693:'provision in presidential transition act of 1963, which authorized services and facilities page 252 gao04261sp appropriations law—vol. i chapter 2',
2694:'the legal framework to former president and vice president only for 6 months after expiration of term of office. in',
2695:'a 1982 decision, 61 comp. gen. 532, gao reconciled an authorization act and an appropriation act by finding the appropriation',
2696:'to be a noyear appropriation, except to the extent the related authorization specified a lesser period of availability. the authorization',
2697:'act had authorized funds to be appropriated for a particular project “for fiscal year 1978.” the fiscal year 1978 funds',
2698:'for that project were included in a larger lump sum appropriated “as authorized by law, to remain available until expended.”',
2699:'in reconciling the two statutes, gao concluded that funds for the project in question from the lumpsum appropriation were available',
2700:'for obligation only during fiscal year 1978. until 1971, the test gao applied in cases like these was whether the',
2701:'appropriation language specifically referred to the authorization. if it did, then gao considered the provisions of the authorization act—including any',
2702:'multiple year or noyear authorizations—to be incorporated by reference into the provisions of the appropriation act. this was regarded as',
2703:'sufficient to overcome 31 u.s.c. § 1301c, which presumes that an appropriation is for one fiscal year unless the appropriation',
2704:'states otherwise, and to overcome the presumption of fiscal year availability derived from the enacting clause of the appropriation act.',
2705:'if the appropriation language did not specifically refer to the authorization act, the appropriation was held to be available only',
2706:'for the fiscal year covered by the appropriation act. 45 comp. gen. 508 1966; 45 comp. gen. 236 1965; b147196,',
2707:'apr. 5, 1965; b127518, may 10, 1956; b37398, oct. 26, 1943. the reference had to be specific; the phrase “as',
2708:'authorized by law” was not enough. b127518, may 10, 1956. by 1971, however, congress was enacting and continues to enact',
2709:'a general provision in all appropriation acts: “[n]o part of any appropriation contained in this act shall remain available for',
2710:'obligation beyond the current fiscal year unless expressly so provided herein.” now, if an appropriation act contains the provision quoted',
2711:'in the preceding paragraph, it will not be sufficient for an appropriation contained in that act to merely incorporate a',
2712:'multiple year or noyear authorization by reference. the effect of this general provision is to require the appropriation language to',
2713:'expressly provide for availability beyond one year in order to overcome the enacting clause. 50 comp. gen. 857 1971. the',
2714:'general provision resulted from the efforts of the house committee on appropriations in connection with the 1964 foreign aid appropriations',
2715:'bill. page 253 gao04261sp appropriations law—vol. i chapter 2 the legal framework in its report on that bill, the committee',
2716:'first described thenexisting practice: “the custom and practice of the committee on appropriations has been to recommend appropriations on an',
2717:'annual basis unless there is some valid reason to make the item available for longer than a oneyear period. the',
2718:'most common technique in the latter instances is to add the words ‘to remain available until expended’ to the appropriation',
2719:'paragraph. “in numerous instances, … the congress has in the underlying enabling legislation authorized appropriations therefor to be made on',
2720:'an ‘available until expended’ basis. when he submits the budget, the president generally includes the phrase ‘to remain available until',
2721:'expended’ in the proposed appropriation language if that is what the executive wishes to propose. the committee either concurs or',
2722:'drops the phrase from the appropriation language.” h.r. rep. no. 881040, at 55 1963. the committee then noted a situation',
2723:'in the 1963 appropriation that had apparently generated some disagreement. the president had requested certain refugee assistance funds to remain',
2724:'available until expended. the report goes on to state: “the committee thought the funds should be on a 1year basis,',
2725:'thus the phrase ‘to remain available until expended’ was not in the bill as reported. the final law also failed',
2726:'to include the phrase or any other express language of similar import. thus congress took affirmative action to limit the',
2727:'availability to the fiscal year 1963 only.” id. at 56. the committee then quoted what is now 31 u.s.c. §',
2728:'1301c, and stated: “the above quoted 31 u.s.c. [§ 1301c] seems clearly to govern and, in respect to the instant',
2729:'class of appropriation, to require the act making the appropriation to expressly provide for availability longer than 1 year if',
2730:'the enacting clause limiting the appropriations in the law to a given fiscal year is to be overcome as to',
2731:'any specific appropriation page 254 gao04261sp appropriations law—vol. i chapter 2 the legal framework therein made. and it accords with',
2732:'the rule of reason and ancient practice to retain control of such an elementary matter wholly within the terms of',
2733:'the law making the appropriation. the two hang together. but in view of the question in the present case and',
2734:'the possibility of similar questions in a number of others, consideration may have to be given to revising the provisions',
2735:'of 31 u.s.c. [§ 1301c] to make its scope and meaning crystal clear and perhaps update it as may otherwise',
2736:'appear desirable.” id. emphasis in original. section 1301c was not amended, but soon after the above discussion appeared, appropriation acts',
2737:'started including the general provision stating that “[n]o part of any appropriation contained in this act shall remain available for',
2738:'obligation beyond the current fiscal year unless expressly so provided herein.” this added another ingredient to the recipe that had',
2739:'not been present in the earlier decisions, although it took several years before the new general provision began appearing in',
2740:'almost all appropriation acts. when the issue arose again in a 1971 case, gao considered the new appropriation act provision',
2741:'and the 1963 comments of the house appropriations committee. in that decision, gao noted that “it seems evident that the',
2742:'purpose [of the new general provision] is to overcome the effect of our decisions … regarding the requirements of 31',
2743:'u.s.c. [§ 1301c],” and further noted the apparent link between the discussion in house report 1040 and the appearance of',
2744:'the new provision. 50 comp. gen. at 859. see also 58 comp. gen. 321 1979; b207792, aug. 24, 1982. thus,',
2745:'the appropriation act will have to expressly repeat the multiple year or noyear language of the authorization, or at least',
2746:'expressly refer to the specific section of the authorizing statute in which it appears. changes in the law from year',
2747:'to year may produce additional complications. for example, the national historic preservation act, pub. l. no. 89665, § 103b, 80',
2748:'stat. 915, 916 oct. 15, 1966 authorization, provided that funds appropriated and apportioned to states would remain available for obligation',
2749:'for three fiscal years, after which time any unobligated balances would be reapportioned. this amounted to a noyear authorization. for',
2750:'several years, appropriations to fund the program were made on a noyear basis, thus permitting implementation of the authorization provision.',
2751:'starting with fiscal year 1978, however, the appropriation act was changed and the funds were made available for two page',
2752:'255 gao04261sp appropriations law—vol. i chapter 2 the legal framework e. authorization enacted after appropriation fiscal years. see pub. l.',
2753:'no. 9574, 91 stat. 289 july 26, 1977. this raised the question of whether the appropriation act had the effect',
2754:'of overriding the apparently conflicting authorizing language, or if it meant merely that reapportionment could occur after two fiscal years',
2755:'instead of three, thus effectively remaining a noyear appropriation. gao concluded that the literal language and plain meaning of the',
2756:'appropriation act must govern. in addition to the explicit appropriation language, the appropriation acts contained the general provision restricting availability',
2757:'to the current fiscal year unless expressly provided otherwise therein. therefore, any funds not obligated by the end of the',
2758:'2year period would expire and could not be reapportioned. b151087, feb. 17, 1982; b151087, sept. 15, 1981. for purposes of',
2759:'the rule of 50 comp. gen. 857 and its progeny, it makes no difference whether the authorization is in an',
2760:'annual authorization of appropriations act or in permanent enabling legislation. it also appears to make no difference whether the authorization',
2761:'merely authorizes the longer period of availability or directs it. see, for example, 58 comp. gen. 321, supra, in which',
2762:'the general provision restricting availability to the current fiscal year, as the later expression of congressional intent, was held to',
2763:'override 25 u.s.c. § 13a, which provides that the unobligated balances of certain indian assistance appropriations “shall remain available for',
2764:'obligation and expenditure” for a second fiscal year. see also 71 comp. gen. 39, 40 1991; b249087, june 25, 1992.',
2765:'similarly, in dabney v. reagan, no. 82 civ. 2231csh s.d. n.y. june 6, 1985, the court held that a 2year',
2766:'period of availability specified in appropriation acts would override a “mandatory” noyear authorization contained in the solar energy and energy',
2767:'conservation bank act. our discussion thus far has, for the most part, been in the context of the normal sequence—that',
2768:'is, the authorization act is passed before the appropriation act. sometimes, however, consideration of the authorization act is delayed and',
2769:'it is not enacted until after the appropriation act. determining the relationship between the two acts involves application of the',
2770:'same general principles we have been applying when the acts are enacted in the normal sequence. the first step is',
2771:'to attempt to construe the statutes together in some reasonable fashion. to the extent this can be done, there is',
2772:'no real conflict, and the reversed sequence will in many cases make no difference. earlier, for example, we discussed the',
2773:'rule that a specific earmark in an page 256 gao04261sp appropriations law—vol. i chapter 2 the legal framework authorization act',
2774:'must be followed when the related appropriation is an unspecified lump sum. in two of the cases cited for that',
2775:'proposition— b220682, feb. 21, 1986, and b193282, dec. 21, 1978—the appropriation act had been enacted prior to the authorization, a',
2776:'factor that did not affect the outcome. in b193282, for example, the 1979 justice department authorization act authorized a lumpsum',
2777:'appropriation to the immigration and naturalization service ins and provided that $2 million “shall be available” for the investigation and',
2778:'prosecution of certain cases involving alleged nazi war criminals. the 1979 appropriation act made a lumpsum appropriation to the ins',
2779:'but contained no specific mention of the nazi war criminal item. the appropriation act was enacted on october 10, 1978,',
2780:'but the authorization act was not enacted until november. in response to a question as to the effect of the',
2781:'authorization provision on the appropriation, the comptroller general advised that the two statutes could be construed harmoniously, and that the',
2782:'$2 million earmarked in the authorization act could be spent only for the purpose specified. it was further noted that',
2783:'the $2 million represented a minimum but not a maximum. b193282, supra, amplified by b193282, jan. 25, 1979. this is',
2784:'the same result that would have been reached if the normal sequence had been followed. similarly, in b226389, nov. 14,',
2785:'1988, a provision in the 1987 defense appropriation act prohibited the navy from including certain provisions in ship maintenance contracts.',
2786:'the 1987 authorization act, enacted after the appropriation, amended a provision in title 10 of the united states code to',
2787:'require the prohibited provisions. application of the last in time rule would have negated the appropriation act provision. however, it',
2788:'was possible to give effect to both provisions by construing the appropriation restriction as a temporary exemption from the permanent',
2789:'legislation in the authorization act. again, this is the same result that would have been reached if the authorization act',
2790:'were enacted first. if the authorization and appropriation cannot be reasonably reconciled, the last in time rule will apply just',
2791:'as it would under the normal sequence, except here the result will be different because the authorization is the later',
2792:'of the two. a 1989 case will illustrate. the 1989 treasury department appropriation act contained a provision prohibiting placing certain',
2793:'components of the department under the oversight of the treasury inspector general. a month later, congress enacted legislation placing those',
2794:'components under the inspector general’s jurisdiction and page 257 gao04261sp appropriations law—vol. i chapter 2 the legal framework transferring their',
2795:'internal audit staffs to the inspector general “notwithstanding any other provision of law.” but for the “notwithstanding” clause, it might',
2796:'have been possible to use the same approach as in b226389 and find the appropriation restriction a temporary exemption from',
2797:'the new permanent legislation. in view of that clause, however, gao found that the two provisions could not be reconciled,',
2798:'and concluded that the inspector general legislation, as the later enactment, superseded the appropriation act provision. b203900, feb. 2, 1989.',
2799:'two other examples of invoking the last in time rule can be found in dueling defense department authorization and appropriation',
2800:'act provisions. in one case, the defense appropriations act for 1992 directed the defense department to extend a contract relating',
2801:'to the civilian heath and medical program for uniformed services champus program for another year. however, the defense authorization act',
2802:'for 1992 countermanded that mandate and permitted the defense department to award a new contract. in b247119, mar. 2, 1992,',
2803:'the comptroller general had little difficulty concluding that the two provisions were irreconcilably in conflict. indeed, the legislative history demonstrated',
2804:'that the drafters of the appropriation and authorization acts sought to trump each other on this point as their two',
2805:'bills proceeded through congress. the more difficult issue was how to apply the last in time rule to the case.',
2806:'the complication was that, while congress had completed action on the authorization bill first 1 day before the appropriation bill,',
2807:'the president acted in the opposite order—signing the appropriation bill into law 9 days before he signed the authorization bill.',
2808:'noting that the date on which the president signs a bill is clearly the date it becomes law, the comptroller',
2809:'general held that the authorization act was the later in time, and thus, its provisions controlled. the other case involved',
2810:'competing provisions in the defense authorization and appropriation acts for fiscal year 1993. section 351a of the authorization act pub.',
2811:'l. no. 102484, 106 stat. 2377, which the president signed into law on october 23, 1992, required the use of',
2812:'competitive procedures before defense took action to consolidate certain maintenance activities at a single depot. section 9152 of the appropriation',
2813:'act pub. l. no. 102396, 106 stat. 1943, which the president had signed several weeks earlier on october 6, provided',
2814:'that, notwithstanding section 351a of the authorization act, no funds could be used to prevent or delay the depot consolidation.',
2815:'in the ensuing litigation, the court ultimately determined that the two provisions could be reconciled. american federation of government employees,',
2816:'local 1945 v. cheney, cv92pt2453e n.d. page 258 gao04261sp appropriations law—vol. i chapter 2 the legal framework ala., dec. 21,',
2817:'1992. however, citing b247119 among other sources, the court added that if the provisions were irreconcilable, the later in time',
2818:'would prevail. in this connection, the court noted that the tension between the two provisions apparently stemmed from efforts by',
2819:'individual members of congress to protect federal facilities within their districts and observed: “there is perhaps even more reason to',
2820:'apply the more objective standards of ‘last enacted prevails’ and/or the requirement of a ‘clear manifestation of intent to repeal’',
2821:'when the legislation is more significantly influenced by individual congressmen than by the ‘intent’ of congress.” afge, local 1945, slip',
2822:'op. at 24. just as with any other application of the last in time rule, the later enactment prevails only',
2823:'to the extent of the irreconcilable conflict. b61178, oct. 21, 1946 specific limitations in appropriation act not superseded by afterenacted',
2824:'authorization absent indication that authorization was intended to alter provisions of prior appropriation. sometimes, application of the standard principles fails',
2825:'to produce a simple answer. for example, congress appropriated $75 million for fiscal year 1979 for urban formula grants “as',
2826:'authorized by the urban mass transportation act of 1964.” when the appropriation was enacted, legislation was pending—and was enacted 3',
2827:'months after the appropriation—repealing the existing formula and replacing it with a new and somewhat broader formula. the new formula',
2828:'provision specified that it was to be applicable to “sums appropriated pursuant to subparagraph b of this paragraph.” on the',
2829:'one hand, since the original formula had been repealed, it could no longer control the use of the appropriation. yet',
2830:'on the other hand, funds appropriated 3 months prior to passage of the new formula could not be said to',
2831:'have been appropriated “pursuant to” the new act. hence, neither formula was clearly applicable to the $75 million. the comptroller',
2832:'general concluded that the $75 million earmarked for the grant program had to be honored and that it should be',
2833:'distributed in accordance with those portions of the new formula that were “consistent with the terms of the appropriation,” that',
2834:'is, the funds should be used in accordance with those elements of the new formula that had also been reflected',
2835:'in the original formula. b175155, july 25, 1979. f. two statutes enacted on the supreme court has said that the',
2836:'doctrine against repeal by implication same day is even more forceful “where the one act follows close upon the other,',
2837:'at page 259 gao04261sp appropriations law—vol. i chapter 2 the legal framework the same session of the legislature.” morf v.',
2838:'bingaman, 298 u.s. 407, 414 1936; see also auburn housing authority v. martinez, 277 f.3d 138, 145 2nd cir. 2002;',
2839:'b277905, mar. 17, 1998. this being the case, the doctrine reaches perhaps its strongest point, and the “last in time”',
2840:'rule is correspondingly at its weakest, when both statutes are enacted on the same day. except in the very rare',
2841:'case in which the intent of one statute to affect the other is particularly manifest, it makes little sense to',
2842:'apply a last in time concept where the time involved is a matter of hours, or as in one case',
2843:'b79243, sept. 28, 1948, 7 minutes. thus, the starting point is the presumption—applicable in all cases but even stronger in',
2844:'this situation— that congress intended both statutes to stand together. 67 comp. gen. 332, 335 1988; b204078.2, may 6, 1988.',
2845:'when there is an apparent conflict between an appropriation act and another statute enacted on the same day, the approach',
2846:'is to make every effort to reconcile the statutes so as to give maximum effect to both. in some cases,',
2847:'it will be found that there is no real conflict. in 67 comp. gen. 332, for example, one statute authorized',
2848:'certain commodity credit corporation appropriations to be made in the form of current, indefinite appropriations, while the appropriation act, enacted',
2849:'on the same day, made lineitem appropriations. there was no conflict because the authorization provision was a directive to congress',
2850:'itself that congress was free to disregard, subject to a possible point of order, when making the actual appropriation. similarly,',
2851:'there was no inconsistency between an appropriation act provision, which required that panama canal commission appropriations be spent only in',
2852:'conformance with the panama canal treaty of 1977 and its implementing legislation, and an authorization act provision, enacted on the',
2853:'same day, requiring prior specific authorizations. b204078.2, supra. in other cases, applying traditional rules of statutory construction will produce reconciliation.',
2854:'for example, if one statute can be said to be more specific than the other, they can be reconciled by',
2855:'applying the more specific provision first, with the broader statute then applying to any remaining situations. see b231662, sept. 1,',
2856:'1988; b79243, supra. legislative history may also help. in b207186, feb. 10, 1989, for example, authorizing legislation extended the life',
2857:'of the solar energy and energy conservation bank to march 15, 1988. the 1988 appropriation, enacted on the same day,',
2858:'made a 2year appropriation for the bank. not only were there no indications of any intent for the appropriation to',
2859:'have the effect of extending the bank’s life, there were specific indications to the contrary. page 260 gao04261sp appropriations law—vol.',
2860:'i chapter 2 the legal framework g. ratification by appropriation thus, gao regarded the appropriation as available, in theory for',
2861:'the full 2year period, except that the authority for anyone to obligate the appropriation would cease when the bank went',
2862:'out of existence. the most extreme situation, and one in which the last in time rule by definition cannot possibly',
2863:'apply, is two conflicting provisions in the same statute. even here, the approaches outlined above will usually prove successful. see,',
2864:'e.g., b211306, june 6, 1983. we have found only one case, 26 comp. dec. 534 1920, in which two provisions',
2865:'in the same act were found irreconcilable. one provision in an appropriation act appropriated funds to the army for the',
2866:'purchase of land; another provision a few pages later in the same act expressly prohibited the use of army appropriations',
2867:'for the purchase of land. the comptroller of the treasury concluded, in a very brief decision, that the prohibition nullified',
2868:'the appropriation. the advantage of this result, although not stated this way in the decision, is that congress would ultimately',
2869:'have to resolve the conflict and it is easier to make expenditures that have been deferred than to recoup money',
2870:'after it has been spent. the fact that two allegedly conflicting provisions were contained in the same statute influenced the',
2871:'court to reconcile them in auburn housing authority, supra. the funding restriction provision used the word “hereafter,” which, as the',
2872:'court acknowledged, ordinarily connotes permanence. however, the court nonetheless held that this provision applied only for the duration of the',
2873:'fiscal year and did not constitute an implied repeal of the other provision. the opinion observed in this regard: “given',
2874:'the unique circumstances of this case, the court is not convinced that the mere presence of the word ‘hereafter’ in',
2875:'section 226 clearly demonstrates congress’s intent to repeal section 519n. this could be a different case if sections 226 and',
2876:'519n appeared in separate statutes, but that is not the question we consider in the instant appeal.” 277 f.3d at',
2877:'146. “ratification by appropriation” is the doctrine by which congress can, by the appropriation of funds, confer legitimacy on an',
2878:'agency action that was questionable when it was taken. clearly congress may ratify that which it could have authorized. swayne',
2879:'& hoyt, ltd. v. united states, 300 u.s. 297, 301–02 1937. it is also settled that congress may manifest its',
2880:'ratification by the appropriation of funds. greene v. mcelroy, 360 u.s. 474, page 261 gao04261sp appropriations law—vol. i chapter 2',
2881:'the legal framework 504–06 1959; ex parte endo, 323 u.s. 283, 303 n.24 1944; brooks v. dewar, 313 u.s. 354,',
2882:'360–61 1941. having said this, however, we must also emphasize that “ratification by appropriation is not favored and will not',
2883:'be accepted where prior knowledge of the specific disputed action cannot be demonstrated clearly.” district of columbia federation of civic',
2884:'ass’ns v. airis, 391 f.2d 478, 482 d.c. cir. 1968; associated electric cooperative, inc. v. morton, 507 f.2d 1167, 1174',
2885:'d.c. cir. 1974, cert. denied, 423 u.s. 830 1975; american legion v. derwinski, 827 f. supp. 805, 809 d.d.c. 1993,',
2886:'aff’d, 54 f.3d 789 d.c. cir. 1995, cert. denied, 516 u.s. 1041 1996. thus, a simple lumpsum appropriation, without more,',
2887:'will generally not afford sufficient basis to find a ratification by appropriation. endo, 323 u.s. at 303 n.24; airis, 391',
2888:'f.2d at 481–82; wade v. lewis, 561 f. supp. 913, 944 n.d. ill. 1983; b213771, july 10, 1984. the appropriation',
2889:'“must plainly show a purpose to bestow the precise authority which is claimed.” endo, 323 u.s. at 303 n.24. accord:',
2890:'schism v. united states, 316 f.3d 1259, 1289– 1290 fed. cir. 2002, cert. denied, u.s. , 123 s. ct. 2246',
2891:'2003 “ratification ordinarily cannot occur in the appropriations context unless the appropriations bill itself expressly allocates funds for a specific',
2892:'agency or activity”; a1 cigarette vending, inc. v. united states, 49 fed. cl. 345, 354 2001, aff’d sub nom. 304',
2893:'f.3d 1349 fed. cir. 2002, cert. denied sub nom. u.s. , 123 s. ct. 1570 2003 “[s]imply because the lack',
2894:'of an appropriation demonstrates a lack of authority does not mean that an appropriation by itself will create such authority…',
2895:'. [a] general appropriation of funds for an overall program is not sufficient to bestow authority upon a particular aspect',
2896:'of an agency’s program.”. some courts have used language which, when taken out of context, implies that appropriations cannot serve',
2897:'to ratify prior agency action. e.g., concerned residents of buck hill falls v. grant, 537 f.2d 29, 35 n.12 3rd',
2898:'cir. 1976; university of the district of columbia faculty ass’n v. board of trustees of the university of the district',
2899:'of columbia, 994 f. supp. 1, 10 d.d.c. 1998. nevertheless, while the doctrine may not be favored, it does exist.',
2900:'the courts demonstrate their reluctance to apply this doctrine by giving extra scrutiny to alleged ratifications by appropriation. their reluctance',
2901:'to find such ratifications probably stems from a more general judicial aversion to interpreting appropriation acts as changing substantive law.',
2902:'thus, the court observed in thomas v. network solutions, inc., 2 f. supp. 2d 22, 32 at n.12 d.d.c. 1998,',
2903:'aff’d, 176 f.3d 500 d.c. cir. 1999, cert. denied, 528 u.s. 1115 2000 citations omitted: page 262 gao04261sp appropriations law—vol.',
2904:'i chapter 2 the legal framework “ [i]t is well recognized that congress does not normally perform legislative functions—such as',
2905:'ratification— through appropriations bills… . this does not mean that congress cannot effect a ratification through an appropriations bill, but',
2906:'it does mean that congress must be especially clear about its intention to do so.” we turn now to some',
2907:'specific situations in which the doctrine of ratification by appropriation has been accepted or rejected. presidential reorganizations have generated perhaps',
2908:'the largest number of cases. generally, when the president has created a new agency or has transferred a function from',
2909:'one agency to another, and congress subsequently appropriates funds to the new agency or to the old agency for the',
2910:'new function, the courts have found that the appropriation ratified the presidential action. fleming v. mohawk wrecking & lumber co.,',
2911:'331 u.s. 111, 116 1947; isbrandtsenmoller co. v. united states, 300 u.s. 139, 147 1937. the transfer to the equal',
2912:'employment opportunity commission eeoc in 1978 of enforcement responsibility for the age discrimination in employment act and the equal pay',
2913:'act produced a minor flood of litigation. the cases were complicated by the existence of a legislative veto issue, with',
2914:'the ratification issue having to be faced only if the reorganization authority were found severable from the legislative veto. although',
2915:'the courts were not uniform, a clear majority found that the subsequent appropriation of funds to the eeoc ratified the',
2916:'transfer. eeoc v. dayton power & light co., 605 f. supp. 13 s.d. ohio 1984; eeoc v. delaware dept. of',
2917:'health & social services, 595 f. supp. 568 d. del. 1984; eeoc v. new york, 590 f. supp. 37 n.d.',
2918:'n.y. 1984; eeoc v. radio montgomery, inc., 588 f. supp. 567 w.d. va. 1984; eeoc v. city of memphis, 581',
2919:'f. supp. 179 w.d. tenn. 1983; muller optical co. v. eeoc, 574 f. supp. 946 w.d. tenn. 1983, aff’d on',
2920:'other grounds, 743 f.2d 380 6th cir. 1984. contra eeoc v. martin industries, 581 f. supp. 1029 n.d. ala., appeal',
2921:'dismissed, 469 u.s. 806 1984; eeoc v. allstate insurance co., 570 f. supp. 1224 s.d. miss. 1983, appeal dismissed, 467',
2922:'u.s. 1232 1984. congress resolved any doubt by enacting legislation in 1984 to expressly ratify all prior reorganization plans implemented',
2923:'pursuant to any reorganization statute.58 58 pub. l. no. 98532, 98 stat. 2705 oct. 19, 1984, codified at 5 u.s.c.',
2924:'§ 906 note. page 263 gao04261sp appropriations law—vol. i chapter 2 the legal framework another group of cases that has',
2925:'refused to find ratification by appropriation concern proposed construction projects funded under lump sum appropriations where the effect would be',
2926:'either to expand the scope of a prior congressional authorization or to supply an authorization required by statute but not',
2927:'obtained. libby rod & gun club v. poteat, 594 f.2d 742 9th cir. 1979; national wildlife federation v. andrus, 440',
2928:'f. supp. 1245 d.d.c. 1977; atchison, topeka & santa fe railway co v. callaway, 382 f. supp. 610 d.d.c. 1974;',
2929:'b223725, june 9, 1987. a few additional cases in which ratification by appropriation was found are summarized below: the tennessee',
2930:'valley authority tva had asserted the authority to construct power plants. tva’s position was based on an interpretation of its',
2931:'enabling legislation that the court found consistent with the purpose of the legislation although the legislation itself was ambiguous. the',
2932:'appropriation of funds to tva for power plant construction ratified tva’s position. young v. tennessee valley authority, 606 f.2d 143',
2933:'6th cir. 1979, cert. denied, 445 u.s. 942 1980. the authority of the postmaster general to conduct a mail transportation',
2934:'experiment was ratified by the appropriation of funds to the former post office department under circumstances showing that congress was',
2935:'fully aware of the experiment. the court noted that existing statutory authority was broad enough to encompass the experiment and',
2936:'that nothing prohibited it. atchison, topeka & santa fe railway co. v. summerfield, 229 f.2d 777 d.c. cir. 1955, cert.',
2937:'denied, 351 u.s. 926 1956. the authority of the department of justice to retain private counsel to defend federal officials',
2938:'in limited circumstances, while not explicitly provided by statute, is regarded as ratified by the specific appropriation of funds for',
2939:'that purpose. 2 op. off. legal counsel 66 1978. another office of legal counsel opinion described instances in which congress',
2940:'has ratified by appropriation the use of united states combat forces. the opinion concludes on this point: “in sum, basic',
2941:'principles of constitutional law—and, in particular, the fact that congress may express approval through the appropriations process—and historical practice in',
2942:'the war powers area, as well as the bulk of the case law page 264 gao04261sp appropriations law—vol. i chapter',
2943:'2 the legal framework and a substantial body of scholarly opinion, support the conclusion that congress can authorize hostilities through',
2944:'its use of the appropriations power. although it might be the case that general funding statutes do not necessarily constitute',
2945:'congressional approval for conducting hostilities, this objection loses its force when the appropriations measure is directly and conspicuously focused on',
2946:'specific military action.”59 note that in all of the cases in which ratification by appropriation was approved, the agency had',
2947:'at least an arguable legal basis for its action. see also airis, 391 f.2d at 481 n.20; b232482, june 4,',
2948:'1990. the doctrine has not been used to excuse violations of law. also, when an agency action is constitutionally suspect,',
2949:'the courts will require that congressional action be particularly explicit. greene v. mcelroy, 360 u.s. at 506–07; martin industries, 581',
2950:'f. supp. at 1033–37; muller optical co., 574 f. supp. at 954. in b285725, sept. 29, 2000, the comptroller general',
2951:'condensed the foregoing principles into this test for ratification by appropriation: “to conclude that congress through the appropriations process has',
2952:'ratified agency action, three factors generally must be present. first, the agency takes the action pursuant to at least arguable',
2953:'authority; second, the congress has specific knowledge of the facts; and third, the appropriation of funds clearly bestows the claimed',
2954:'authority.” the opinion in b285725 rejected an assertion by the district of columbia government that congress had ratified certain funding',
2955:'practices that otherwise violated the antideficiency act, 31 u.s.c. § 1341. specifically, it held that information contained in the district’s',
2956:'budget justifications and said to constitute notice to congress 1 lacked clarity and precision, 2 did not create any awareness',
2957:'that could be imputed to congress as a whole, and 3 was not reflected in any legislative language that could',
2958:'reasonably be viewed as authorizing the practices in question. 59 authorization for continuing hostilities in kosovo, unpublished olc opinion, dec.',
2959:'19, 2000. page 265 gao04261sp appropriations law—vol. i chapter 2 the legal framework h. repeal by implication we have on',
2960:'several occasions referred to the rule against repeal by implication. the leading case in the appropriations context is tennessee valley',
2961:'authority v. hill, 437 u.s. 153 1978 hereafter tva v. hill. in that case, congress had authorized construction of the',
2962:'tellico dam and reservoir project on the little tennessee river, and had appropriated initial funds for that purpose. subsequently, congress',
2963:'passed the endangered species act of 1973, 16 u.s.c. §§ 1531 et seq. under the provisions of that act, the',
2964:'secretary of the interior declared the “snail darter,” a 3inch fish, to be an endangered species. it was eventually determined',
2965:'that the little tennessee river was the snail darter’s critical habitat and that completion of the dam would result in',
2966:'extinction of the species. consequently, environmental groups and others brought an action to halt further construction of the tellico project.',
2967:'in its decision, the supreme court held in favor of the plaintiffs, notwithstanding the fact that construction was well under',
2968:'way and that, even after the secretary of the interior’s actions regarding the snail darter, congress had continued to make',
2969:'yearly appropriations for the completion of the dam project. the appropriation involved was a lumpsum appropriation that included funds for',
2970:'the tellico dam but made no specific reference to it. however, passages in the reports of the appropriations committees indicated',
2971:'that those committees intended the funds to be available notwithstanding the endangered species act. the court held that this was',
2972:'not enough. the doctrine against repeal by implication, the court said, applies with even greater force when the claimed repeal',
2973:'rests solely on an appropriation act: “when voting on appropriations measures, legislators are entitled to operate under the assumption that',
2974:'the funds will be devoted to purposes which are lawful and not for any purpose forbidden.” id. at 190. noting',
2975:'that “[e]xpressions of committees dealing with requests for appropriations cannot be equated with statutes enacted by congress” id. at 191,',
2976:'the court held that the unspecified inclusion of the tellico dam funds in a lumpsum appropriation was not sufficient to',
2977:'constitute a repeal by implication of the endangered species act insofar as it related to that project.60 in other words,',
2978:'the doctrine of ratification by appropriation 60 less than 4 months after the court’s decision, congress enacted legislation exempting the',
2979:'tellico project from the endangered species act. endangered species act amendments of 1978, pub. l. no. 95632, § 5, 92',
2980:'stat. 3751, 3761 nov. 10, 1978. page 266 gao04261sp appropriations law—vol. i chapter 2 the legal framework we discussed in',
2981:'the preceding section does not apply, at least when the appropriation is an otherwise unspecified lump sum, where the effect',
2982:'would be to change an existing statutory requirement. tva v. hill is important because it is a clear and forceful',
2983:'statement from the supreme court. in terms of the legal principle involved, however, the court was breaking little new ground.',
2984:'a body of case law from the lower courts had already laid the legal foundation. one group of cases, for',
2985:'example, had established the proposition that the appropriation of funds does not excuse noncompliance with the national environmental policy act.',
2986:'environmental defense fund v. froehlke, 473 f.2d 346 8th cir. 1972; committee for nuclear responsibility v. seaborg, 463 f.2d 783',
2987:'d.c. cir. 1971; national audubon society v. andrus, 442 f. supp. 42 d.d.c. 1977; environmental defense fund v. corps of',
2988:'engineers, 325 f. supp. 749 e.d. ark. 1971. cases supporting the general proposition of tva v. hill in other contexts',
2989:'were also not uncommon. see associated electric cooperative, inc. v. morton, 507 f.2d 1167 d.c. cir., cert. denied, 423 u.s.',
2990:'830 1974; district of columbia federation of civic ass’ns v. airis, 391 f.2d 478 d.c. cir. 1968; maiatico v. united',
2991:'states, 302 f.2d 880 d.c. cir. 1962. some subsequent cases applying the concept of tva v. hill although not all',
2992:'citing that case include donovan v. carolina stalite co., 734 f.2d 1547 d.c. cir. 1984; 64 comp. gen. 282 1985;',
2993:'b208593.6, dec. 22, 1988; b213771, july 10, 1984; b204874, july 28, 1982; and b193307, feb. 6, 1979. in b204874, for',
2994:'example, the comptroller general advised that the otherwise unrestricted appropriation of coal trespass receipts to the bureau of land management',
2995:'did not implicitly amend or repeal the provisions of the federal land policy and management act prescribing the use of',
2996:'such funds. in reading the cases, one will encounter the occasional sweeping statement such as “appropriations acts cannot change existing',
2997:'law,” national audubon society v. andrus, 442 f. supp. at 45. such statements can be misleading, and should be read',
2998:'in the context of the facts of the particular case. it is clear from tva v. hill, together with its',
2999:'ancestors and its progeny, that congress cannot legislate by legislative history. it seems equally clear that the appropriation of funds,',
3000:'without more, is not sufficient to overcome a statutory requirement. if, however, instead of an unrestricted lump sum, the appropriation',
3001:'in tva v. hill had provided a specific lineitem appropriation for the tellico project, together with the words “notwithstanding the',
3002:'provisions of the endangered species act,” it is page 267 gao04261sp appropriations law—vol. i chapter 2 the legal framework difficult',
3003:'to see how a court could fail to give effect to the express mandate of the appropriation. thus, the message',
3004:'is not that congress cannot legislate in an appropriation act. it can, and we have previously cited a body of',
3005:'case law to that effect. the real message is that, if congress wants to use an appropriation act as the',
3006:'vehicle for suspending, modifying, or repealing a provision of existing law, it must do so advisedly, speaking directly and explicitly',
3007:'to the issue. the supreme court conveyed this message succinctly in robertson v. seattle audubon society, 503 u.s. 429, 440',
3008:'1992 citations omitted, holding that— “[a]lthough repeals by implication are especially disfavored in the appropriations context, congress nonetheless may amend',
3009:'substantive law in an appropriations statute, as long as it does so clearly.” in robertson, the court found an implied',
3010:'repeal by appropriation act to be clear and explicit. subsequent judicial decisions, of course, apply the robertson approach to alleged',
3011:'implied repeals by appropriation. since the issue is one of basic statutory construction, the courts naturally reach different results depending',
3012:'on the particular statutory language involved. for example, pontarelli v. united states department of the treasury, 285 f.3d 216 3rd',
3013:'cir. 2002, held that an annual appropriation restriction enacted for many years stating that “[n]one of the funds appropriated herein',
3014:'shall be available to investigate or act upon applications for relief from federal firearms disabilities under 18 u.s.c. § 925c”',
3015:'clearly superseded the provision in title 18 of the united states code. pontarelli cites many other decisions that reached the',
3016:'same conclusion with respect to this particular appropriation language. another case finding a clear implied repeal by appropriation is bald',
3017:'eagle ridge protection ass’n, inc. v. mallory, 119 f. supp. 2d 473 m.d. pa. 2000, aff’d, 275 f.3d 33 3rd',
3018:'cir. 2001. examples of cases that reconciled the appropriation and other statutory provisions, and thus found no implied repeal include:',
3019:'strawser v. atkins, 290 f.3d 720 4th cir., cert. denied, 537 u.s. 1045 2002; auburn housing authority v. martinez, 277',
3020:'f.3d 138 2nd cir. 2002; firebaugh canal co. v. united states, 203 f.3d 568 9th cir. 2000; ramey v. page',
3021:'268 gao04261sp appropriations law—vol. i chapter 2 the legal framework stevedoring services of america, 134 f.3d 954 9th cir. 1998;',
3022:'environmental defense center v. babbitt, 73 f.3d 867 9th cir. 1995. still other cases hold that appropriation restrictions alleged to',
3023:'be permanent in superseding other laws were effective only for a fiscal year. e.g., auburn housing authority, supra; building &',
3024:'construction trades department, aflcio v. martin, 961 f.2d 269, 273 d.c. cir., cert. denied, 506 u.s. 915 1992. in a',
3025:'related context, the court in williams v. united states, 240 f.3d 1019 fed. cir. 2001, cert. denied, 535 u.s. 911',
3026:'2002, disagreed with a series of comptroller general decisions and held that appropriation language enacted in 1982 that required specific',
3027:'congressional authorization for pay raises for judges was not permanent legislation but expired at the end of fiscal year 1982.',
3028:'i. lack of authorization as we have previously noted, there is no general statutory requirement that appropriations be preceded by',
3029:'specific authorizations, although they are required in some instances. where authorizations are not required by law, congress may, subject to',
3030:'a possible point of order, appropriate funds for a program or object that has not been previously authorized or which',
3031:'exceeds the scope of a prior authorization, in which event the enacted appropriation, in effect, carries its own authorization and',
3032:'is available to the agency for obligation and expenditure. e.g., 67 comp. gen. 401 1988; b219727, july 30, 1985; b173832,',
3033:'aug. 1, 1975. it has also been held that, as a general proposition, the appropriation of funds for a program',
3034:'whose funding authorization has expired, or is due to expire during the period of availability of the appropriation, provides sufficient',
3035:'legal basis to continue the program during that period of availability, absent indication of contrary congressional intent. 65 comp. gen.',
3036:'524 1986; 65 comp. gen. 318, 320–21 1986; 55 comp. gen. 289 1975; b131935, mar. 17, 1986; b137063, mar. 21,',
3037:'1966. the result in these cases follows in part from the fact that the total absence of appropriations authorization legislation',
3038:'would not have precluded the making of valid appropriations for the programs. e.g., b202992, may 15, 1981. in addition, as',
3039:'noted, the result is premised on the conclusion, derived either from page 269 gao04261sp appropriations law—vol. i chapter 2 the',
3040:'legal framework legislative history or at least the absence of legislative history to the contrary, that congress did not intend',
3041:'for the programs to terminate.61 there are limits on how far this principle can be taken, depending on the particular',
3042:'circumstances. one illustration is b207186, feb. 10, 1989. a 1988 continuing resolution provided funds for the solar bank, to remain',
3043:'available until september 30, 1989. legislation enacted on the same day provided for the bank to terminate on march 15,',
3044:'1988. based in part on legislative history indicating the intent to terminate the bank on the specified sunset date, gao',
3045:'distinguished prior decisions in which appropriations were found to authorize program continuation and concluded that the appropriation did not authorize',
3046:'continuation of the solar bank beyond march 15, 1988. the comptroller general’s decision in 71 comp. gen. 378 1992 provides',
3047:'another variant. section 8 of the civil rights commission’s authorizing act stated that “the provisions of this act shall terminate',
3048:'on september 30, 1991.” while congress was actively working on reauthorization legislation for the commission toward the end of fiscal',
3049:'year 1991, this legislation was not enacted until after september 30, 1991. nevertheless, congress had enacted a continuing resolution for',
3050:'the early part of fiscal year 1992 that specifically included funding for the commission. the comptroller general first observed that',
3051:'the line of cases discussed above permitting programs to continue after expiration of their authorization did not apply. unlike the',
3052:'mere authorization lapse in those cases, the statute here provided that the commission would “terminate” on september 30. the comptroller',
3053:'general also distinguished the solar bank case, discussed above, since the provision for termination of the commission was enacted long',
3054:'before the continuing resolution that provided for the commission’s funding after september 30. in the final analysis, the decision held',
3055:'that the funding provision for the commission was irreconcilable with the section 8 termination provision and effectively suspended the operation',
3056:'of section 8. in reaching this conclusion, the decision noted the clear intent of congress that the 61 congressional practice',
3057:'also firmly supports this conclusion since congress appropriates huge sums each year to fund programs with expired authorizations. according to',
3058:'the congressional budget office cbo, appropriations for which specific authorizations had expired have ranged between about $90 billion and about',
3059:'$120 billion in recent fiscal years. unauthorized appropriations and senate resolution 173: hearing before the senate committee on rules and',
3060:'administration, 108th cong. 3 july 9, 2003 statement by cbo director douglas holtzeakin. page 270 gao04261sp appropriations law—vol. i chapter',
3061:'2 the legal framework commission continue to operate without interruption after september 30, 1991. a device congress has used on',
3062:'occasion to avoid this type of problem is an “automatic extension” provision under which funding authorization is automatically extended for',
3063:'a specified time period if congress has not enacted new authorizing legislation before it expires. an example is discussed in',
3064:'b214456, may 14, 1984. questions concerning the effect of appropriations on expired or abouttoexpire authorizations have tended to arise more',
3065:'frequently in the context of continuing resolutions. the topic is discussed further, including several of the cases cited above, in',
3066:'chapter 8. where specific authorization is statutorily required, the case may become more difficult. in libby rod & gun club',
3067:'v. poteat, 594 f.2d 742 9th cir. 1979, the court held that a lumpsum appropriation available for dam construction was',
3068:'not, by itself, sufficient to authorize a construction project for which specific authorization had not been obtained as required by',
3069:'33 u.s.c. § 401. the court suggested that tva v. hill and similar cases do not “mandate the conclusion that',
3070:'courts can never construe appropriations as congressional authorization,” although it was not necessary to further address that issue in view',
3071:'of the specific requirement in that case. poteat, 594 f.2d at 745–46. the result would presumably have been different if',
3072:'congress had made a specific appropriation “notwithstanding the provisions of 33 u.s.c. § 401.” it should be apparent that the',
3073:'doctrines of repeal by implication and ratification by appropriation are relevant in analyzing issues of this type. “[t]his is a',
3074:'case for applying the canon of construction of d. statutory the wag who said, when the legislative history is doubtful,',
3075:'interpretation: go to the statute.” determining greenwood v. united states, 350 u.s. 366, 374 1956 frankfurter, j.. congressional intent page',
3076:'271 gao04261sp appropriations law—vol. i chapter 2 the legal framework 1. the goal of statutory construction62 as we have noted',
3077:'elsewhere, an appropriation can be made only by means of a statute. in addition to providing funds, the typical appropriation',
3078:'act includes a variety of general provisions. anyone who works with appropriations matters will also have frequent need to consult',
3079:'authorizing and program legislation. it should thus be apparent that the interpretation of statutes is of critical importance to appropriations',
3080:'law.63 the objective of this section is to provide a brief overview, designed primarily for those who do not work',
3081:'extensively with legislative materials. the cases we cite are but a sampling, selected for illustrative purposes or for a particularly',
3082:'good judicial statement of a point. the literature in the area is voluminous, and readers who need more than we',
3083:'can provide are encouraged to consult one of the established treatises such as sutherland’s statutes and statutory construction hereafter “sutherland”.64',
3084:'the goal of statutory construction is simply stated: to determine and give effect to the intent of the enacting legislature.',
3085:'philbrook v. glodgett, 421 u.s. 707, 713 1975; united states v. american trucking ass’ns, inc., 310 u.s. 534, 542 1940;',
3086:'55 comp. gen. 307, 317 1975; 38 comp. gen. 229 1958. while the goal may be simple, the means of',
3087:'achieving it are complex and often controversial. the primary vehicle for determining legislative intent is the language of the statute',
3088:'itself. there is an established body of principles, known as “canons” of construction, that are designed to aid in arriving',
3089:'at the best interpretation of statutory language. the statute’s legislative history also is usually consulted to aid in the effort.',
3090:'at this point, it is important to recognize that the concept of “legislative intent” is in many cases a fiction.',
3091:'where not clear from the statutory language itself, it is often impossible to ascribe an intent to congress as a',
3092:'62 there is a technical distinction between “interpretation” determining the meaning of words and “construction” application of words to facts.',
3093:'2a sutherland, statutes and statutory construction § 45.04 6th ed. 2000. the distinction, as sutherland points out, has little practical',
3094:'value. we use the terms interchangeably, as does sutherland. 63 “but if congress has all the money of the united',
3095:'states under its control, it also has the whole english language to give it away with… .” 9 op. att’y',
3096:'gen. 57, 59 1857. 64 we will refer to the 6th edition, edited by professor norman j. singer and published',
3097:'in 2000. page 272 gao04261sp appropriations law—vol. i chapter 2 the legal framework whole.65 as we will note later, a',
3098:'committee report represents the views of that committee. statements by an individual legislator represent the views of that individual. either',
3099:'may, but do not necessarily or inherently, reflect a broader congressional perception. even interpretive aids that rely on the statutory',
3100:'language itself do not provide hard and fast rules that can pinpoint congressional intent with scientific precision. one problem is',
3101:'that, more often than not, a statute has no obvious meaning that precisely answers a particular issue in dispute before',
3102:'the courts, the comptroller general, or another decision maker. if the answers were that obvious, most of the cases discussed',
3103:'in this section would never have arisen. the reality is that there probably is and was no actual “congressional intent”',
3104:'with respect to most specific issues that find their way to the courts, gao, or other forums. in all likelihood,',
3105:'congress did not affirmatively consider these specific issues for purposes of forming an intent about them. necessarily, congress writes laws',
3106:'in fairly general terms that convey broad concepts, principles, and policies. it leaves administering agencies and courts to fill in',
3107:'the gaps. indeed, congress sometimes deliberately leaves issues ambiguous because it lacks a sufficient consensus to resolve them in the',
3108:'law. to point out the challenges in statutory interpretation, however, is by no means to denigrate the process. applying the',
3109:'complex maze of interpretive aids, imperfect as they may be, serves the essential purpose of providing a common basis for',
3110:'problem solving and determining what the law is. this in turn is important for two reasons. first, everyone has surely',
3111:'heard the familiar statement that our government is a government of laws and not of men.66 this means that you',
3112:'have a right to have your conduct governed and judged in accordance with identifiable principles and standards, not by the',
3113:'whim of the decision maker. the law should be reasonably predictable. a lawyer’s advice that a proposed action is or',
3114:'is not permissible amounts to 65 e.g., united states v. transmissouri freight ass’n, 166 u.s. 290, 318 1897: “looking simply',
3115:'at the history of the bill from the time it was introduced in the senate until it was finally passed,',
3116:'it would be impossible to say what were the views of a majority of the members of each house in',
3117:'relation to the meaning of the act.” 66 “the government of the united states has been emphatically termed a government',
3118:'of laws, and not of men.” marbury v. madison, 5 u.s. 1 cranch 137, 163 1803. page 273 gao04261sp appropriations',
3119:'law—vol. i chapter 2 the legal framework a reasoned and informed judgment as to what a court is likely to',
3120:'do if the action is challenged. while this can never be an absolute guarantee, it once again must be based',
3121:'on identifiable principles and standards. conceding its weaknesses, the law of statutory construction represents an organized approach for doing this.',
3122:'second, predictability is important in the enactment of statutes as well. congress legislates against the background of the rules and',
3123:'principles that make up the law of statutory construction, and must be able to anticipate how the courts will apply',
3124:'them in interpreting the statutes it enacts.67 2. the “plain meaning” rule “the court’s task is to construe not english',
3125:'but congressional english.” commissioner of internal revenue v. acker, 361 u.s. 87, 95 1959 frankfurter, j., dissenting. a. in general',
3126:'by far the most important rule of statutory construction is this: you start with the language of the statute. countless',
3127:'judicial decisions reiterate this rule. e.g., hartford underwriters insurance co. v. union planters bank, n.a., 530 u.s. 1 2000; robinson',
3128:'v. shell oil co., 519 u.s. 337 1997; connecticut national bank v. germain, 503 u.s. 249 1992; mallard v. united',
3129:'states district court for the southern district of iowa, 490 u.s. 296, 300 1989. the primary vehicle for congress to',
3130:'express its intent is the words it enacts into law. as stated in an early supreme court decision: “the law',
3131:'as it passed is the will of the majority of both houses, and the only mode in which that will',
3132:'is spoken is in the act itself; and we must gather their intention from the language there used … .”',
3133:'67 see mcnary v. haitian refugee center, inc., 498 u.s. 479, 496 1991 “it is presumable that congress legislates with',
3134:'knowledge of our basic rules of statutory construction.”; finley v. united states, 490 u.s. 545, 556 1989 “what is of',
3135:'paramount importance is that congress be able to legislate against a background of clear interpretive rules, so that it may',
3136:'know the effect of the language it adopts.”. page 274 gao04261sp appropriations law—vol. i chapter 2 the legal framework aldridge',
3137:'v. williams, 44 u.s. 3 how. 9, 24 1845. a somewhat better known statement is from united states v. american',
3138:'trucking ass’ns, 310 u.s. 534, 543 1940: “there is, of course, no more persuasive evidence of the purpose of a',
3139:'statute than the words by which the legislature undertook to give expression to its wishes.” if the meaning is clear',
3140:'from the language of the statute, there is no need to resort to legislative history or any other extraneous source.',
3141:'as the supreme court observed in connecticut national bank v. germain: “[i]n interpreting a statute a court should always turn',
3142:'first to one, cardinal canon before all others. we have stated time and again that courts must presume that a',
3143:'legislature says in a statute what it means and means in a statute what it says there… . when the',
3144:'words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.” 503 u.s.',
3145:'at 253–254 citations and quotation marks omitted. see also hartford underwriters insurance co., supra; robinson v. shell oil co., 519',
3146:'u.s. 337 1997; mallard, 490 u.s. 296; united states v. ron pair enterprises, inc., 489 u.s. 235, 241 1989; tennessee',
3147:'valley authority v. hill, 437 u.s. 153, 184 n.29 1978; 56 comp. gen. 943 1977; b287158, oct. 10, 2002; b290021,',
3148:'july 15, 2002; b288173, june 13, 2002; b288658, nov. 30, 2001. this is the socalled “plain meaning” rule. if the',
3149:'meaning is “plain,” that’s the end of the inquiry and you apply that meaning. the unanimous opinion in robinson v.',
3150:'shell oil co. stated the rule as follows: “our first step in interpreting a statute is to determine whether the',
3151:'language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. our inquiry',
3152:'must cease if the statutory language and ‘the statutory scheme is coherent and consistent.’… “the plainness or ambiguity of statutory',
3153:'language is determined by reference to the language itself, the specific page 275 gao04261sp appropriations law—vol. i chapter 2 the',
3154:'legal framework b. the plain meaning rule versus legislative history context in which that language is used, and the broader',
3155:'context of the statute as a whole.” 519 u.s. at 340–341 citations omitted. the plain meaning rule thus embodies the',
3156:'universal view that interpretations of a statute should be anchored in, and flow from, the statute’s text. its application to',
3157:'a particular statutory provision turns on subjective judgments over which reasonable and intelligent people will differ. an example of this',
3158:'is smith v. united states, 508 u.s. 223 1993, in which the justices agreed that the case should be resolved',
3159:'on the basis of the statute’s plain meaning, but reached sharply divergent conclusions as to what that plain meaning was.',
3160:'in smith, the defendant had traded his gun for illegal drugs. he was convicted under a statute that provided enhanced',
3161:'penalties for the “use” of a firearm “during and in relation to … [a] drug trafficking crime.” the majority affirmed',
3162:'his conviction, reasoning that exchanging a firearm for drugs constituted a “use” of the firearm within the plain meaning of',
3163:'the statute—that is, use in the sense of employ. three justices dissented, contending vehemently that the plain meaning of the',
3164:'statute covered only the use of a firearm for its intended purpose as a weapon.68 the extent to which sources',
3165:'outside the statute itself, particularly legislative history, should be consulted to help shed light on the statutory scheme has been',
3166:'the subject of much controversy in recent decades. one school of thought, most closely identified with supreme court justice antonin',
3167:'scalia, holds that resort to legislative history is never appropriate. this approach is sometimes viewed as a variant of the',
3168:'plain meaning rule.69 a more widely expressed statement of the plain meaning rule is that legislative history can be consulted',
3169:'but only if it has first been determined that the statutory language is “ambiguous”—that is, that there is no plain',
3170:'meaning. 68 the federal circuits had likewise split on the plain meaning of this statute prior to the smith decision.',
3171:'see smith, 508 u.s. at 227. 69 see eric s. lasky, perplexing problems with plain meaning, 27 hofstra l. rev.',
3172:'891 1999; r. randall kelso, statutory interpretation doctrine on the modern supreme court and four doctrinal approaches to judicial decisionmaking,',
3173:'25 pepp. l. rev. 37 1997. professor kelso describes justice scalia’s approach as “new textualism.” page 276 gao04261sp appropriations law—vol.',
3174:'i chapter 2 the legal framework as a practical matter, however, courts generally examine the legislative history as an integral',
3175:'part of statutory construction. thus, sutherland observes: “[i]t has been said, usually a court looks into the legislative history to',
3176:'clear up some statutory ambiguity… but such ambiguity is not the sine qua non for judicial inquiry into legislative history',
3177:'… the plain meaning rule is not to be used to thwart or distort the intent of congress by excluding',
3178:'from consideration enlightening material from the legislative files… .” 2a sutherland, § 48:01, at 412–413 citations and quotation marks omitted.',
3179:'in other words, like all “rules” of statutory construction, the plain meaning rule is “rather an axiom of experience than',
3180:'a rule of law, and does not preclude consideration of persuasive evidence if it exists.” boston sand & gravel co.',
3181:'v. united states, 278 u.s. 41, 48 1928 holmes, j., quoted in watt v. alaska, 451 u.s. 259, 266 1981.',
3182:'in another oftenquoted statement, the supreme court said: “when aid to construction of the meaning of words, as used in',
3183:'the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words',
3184:'may appear on ‘superficial examination.’” united states v. american trucking ass’ns, inc., 310 u.s. 534, 543–44 1940, as quoted in',
3185:'train v. colorado public interest research group, inc., 426 u.s. 1, 10 1976 footnotes omitted. indeed, the supreme court, like',
3186:'other courts, routinely consults the legislative history even if the statutory language seems unambiguous.70 one example is conroy v. aniskoff,',
3187:'507 u.s. 511 1993, in which the court found the relevant statute to be “unambiguous, unequivocal, and unlimited.” id. at',
3188:'514. nevertheless, justice stevens, writing for the court, 70 “[s]hortly before justice scalia’s appointment, the justices consulted the legislative records',
3189:'in almost every case involving the interpretation of a statute. today, despite years of justice scalia’s advocation for the plain',
3190:'meaning rule, ‘legislative history is [still] used by at least one justice in virtually every decision of the supreme court',
3191:'in which the meaning of a federal statute is at issue.’” lasky, supra, at 896 footnotes omitted. page 277 gao04261sp',
3192:'appropriations law—vol. i chapter 2 the legal framework examined the legislative history in detail to confirm that its literal reading',
3193:'of the statute was not absurd, illogical, or contrary to congressional intent. justice scalia, however, wrote a spirited concurring opinion',
3194:'that described the inquiry into the legislative history as “a waste of research time and ink” as well as a',
3195:'“disruptive lesson in the law.” id. at 519. 3. the limits of literalism: errors in “there is no surer way',
3196:'to misread any document than to read it literally.” statutes and “absurd consequences” guiseppi v. walling, 144 f.2d 608, 624',
3197:'2nd cir. 1944 learned hand, j.. even the strictest adherence to the plain meaning rule does not justify application of',
3198:'the literal terms of a statute in all cases. there are two well established exceptions. the first is that statutory',
3199:'language will not be enforced literally when that language is the product of an obvious drafting error. in such cases,',
3200:'courts and other decision makers will, in effect, rewrite the statute to correct the error and conform the statute to',
3201:'the obvious intent. the second exception is the frequently cited canon of construction that statutory language will not be interpreted',
3202:'literally if doing so would produce an “absurd consequence” or “absurd result,” that is, one that the legislature, presumably, could',
3203:'not have intended. a. errors in statutes 1 drafting errors a statute may occasionally contain what is clearly a technical',
3204:'or typographical error which, if read literally, could alter the meaning of the statute or render execution effectively impossible. in',
3205:'such a case, if the legislative intent is clear, the intent will be given effect over the erroneous language. one',
3206:'recent example is chickasaw nation v. united states, 534 u.s. 84 2001. the decision turned on the effect of a',
3207:'parenthetical reference to the tax code that had been included in the indian gaming regulatory act. after examining the structure',
3208:'and language of the indian gaming regulatory act as a whole, as well as its legislative history, the court concluded',
3209:'that the parenthetical reference was “simply a drafting mistake”—specifically, the failure to delete a crossreference from an earlier version of',
3210:'the bill—and declined to give it any effect. chickasaw nation, 534 u.s. at 91. page 278 gao04261sp appropriations law—vol. i',
3211:'chapter 2 the legal framework in a number of other cases, courts have followed the same approach by correcting obvious',
3212:'printing or typographical errors. see united states national bank of oregon v. independent insurance agents of america, inc., 508 u.s.',
3213:'439 1993; ronson patents corp. v. sparklets devices, inc., 102 f. supp. 123 e.d. mo. 1951; fleming v. salem box',
3214:'co., 38 f. supp. 997 d. ore. 1940; neely v. state of arkansas, 877 s.w.2d 589 ark.1994; pressman v. state',
3215:'tax commission, 102 a.2d 821 md. 1954; johnson v. united states gypsum co., 229 s.w.2d 671 ark. 1950; baca v.',
3216:'board of commissioners of bernalillo county, 62 p. 979 n.m. 1900.71 comptroller general decisions have likewise repaired obvious drafting errors.',
3217:'in one situation, a supplemental appropriation act provided funds to pay certain claims and judgments as set forth in senate',
3218:'document 94163. examination of the documents made it clear that the reference should have been to senate document 94164, as',
3219:'senate document 94163 concerned a wholly unrelated subject. the manifest congressional intent was held controlling, and the appropriation was available',
3220:'to pay the items specified in senate document 94164. b158642o.m., june 8, 1976. the same principle had been applied in',
3221:'a very early decision in which an 1894 appropriation provided funds for certain payments in connection with an election held',
3222:'on “november fifth,” 1890. the election had in fact been held on november 4. recognizing the “evident intention of congress,”',
3223:'the decision held that the appropriation was available to make the specified payments. 1 comp. dec. 1 1894. see also',
3224:'11 comp. dec. 719 1905; 8 comp. dec. 205 1901; 1 comp. dec. 316 1895. other decisions follow the same',
3225:'approach. see, e.g., 64 comp. gen. 221 1985 erroneous use of the word “title” instead of “subchapter”; b261579, nov. 1,',
3226:'1995 mistaken crossreference to the wrong section of another law; b127507, dec. 10, 1962 printing error causing the statute to',
3227:'refer to “section 12” of a certain township for inclusion in a national forest, rather than “section 13”. 71 united',
3228:'states national bank of oregon is a particularly interesting case, which concerned whether congress had repealed a provision of law',
3229:'originally enacted in 1918. the issue turned on the effect, if any, to be given the placement of quotation marks',
3230:'in a later statute that allegedly constituted the repeal. upon detailed examination of the overall statutory scheme and its evolution',
3231:'over many decades, the court concluded that the quotation marks were misplaced as a result of a drafting error. therefore,',
3232:'the 1918 provision had not been repealed. page 279 gao04261sp appropriations law—vol. i chapter 2 the legal framework b. avoiding',
3233:'“absurd consequences” the justice department’s office of legal counsel applied comptroller general decisions in an opinion dated may 21, 1996,',
3234:'that addressed an obvious problem with the application of an appropriations act.72 the act required the united states information agency',
3235:'to move an office to south florida “not later than april 1, 1996,” and made funds available for that purpose.',
3236:'however, the act was not signed into law until april 26, 1996. recognizing that the act could not be implemented',
3237:'as written, the opinion concluded that the funds remained available to finance the move after april 1. 2 error in',
3238:'amount appropriated a 1979 decision illustrates one situation in which the above rule will not apply. a 1979 appropriation act',
3239:'contained an appropriation of $36 million for the inspector general of the department of health, education, and welfare. the bills',
3240:'as passed by both houses and the various committee reports specified an appropriation of only $35 million. while it seemed',
3241:'apparent that the $36 million was the result of a typographical error, it was held that the language of the',
3242:'enrolled act signed by the president must control and that the full $36 million had been appropriated. the comptroller general',
3243:'did, however, inform the appropriations committees. 58 comp. gen. 358 1979. see also 2 comp. dec. 629 1896; 1 bowler,',
3244:'first comp. dec. 114 1894. however, if the amount appropriated is a total derived from adding up specific sums enumerated',
3245:'in the appropriation act, then the amount appropriated will be the amount obtained by the correct addition, notwithstanding the specification',
3246:'of an erroneous total in the appropriation act. 31 u.s.c. § 1302; 2 comp. gen. 592 1923. departures from strict',
3247:'adherence to the statutory text go beyond cases involving drafting and typographical errors. in fact, it is more common to',
3248:'find cases in which the courts do not question that congress meant to choose the words it did, but conclude',
3249:'that it could not have meant them to apply literally in a particular context. the generally accepted principle here is',
3250:'that the literal language of a statute will not be followed if it would 72 department of justice office of',
3251:'legal counsel memorandum for david w. burke, chairman, broadcasting board of governors, relocation deadline provision contained in the 1996 omnibus',
3252:'consolidated rescissions and appropriations act, may 21, 1996. page 280 gao04261sp appropriations law—vol. i chapter 2 the legal framework produce',
3253:'a result demonstrably inconsistent with clearly expressed congressional intent. the case probably most frequently cited for this proposition is church',
3254:'of the holy trinity v. united states, 143 u.s. 457 1892, which gives several interesting examples. one of those examples',
3255:'is united states v. kirby, 74 u.s. 7 wall. 482 1868, in which the court held that a statute making',
3256:'it a criminal offense to knowingly and willfully obstruct or retard a driver or carrier of the mails did not',
3257:'apply to a sheriff arresting a mail carrier who had been indicted for murder. another is an old english ruling',
3258:'that a statute making it a felony to break out of jail did not apply to a prisoner who broke',
3259:'out because the jail was on fire. holy trinity, 143 u.s. at 460–61. an example from early administrative decisions might',
3260:'be 24 comp. dec. 775 1918, holding that an appropriation for “messenger boys” was available to hire “messenger girls.”73 in',
3261:'cases decided after holy trinity, the court has emphasized that departures from the plain meaning rule are justified only in',
3262:'“rare and exceptional circumstances,” such as the illustrations used in holy trinity. crooks v. harrelson, 282 u.s. 55, 60 1930.',
3263:'see also united states v. ron pair enterprises, inc., 489 u.s. 235, 242 1989; griffin v. oceanic contractors, inc., 458',
3264:'u.s. 564, 571 1982; tennessee valley authority v. hill, 437 u.s. 153, 187 n.33 1978 citing crooks v. harrelson with',
3265:'approval; hereafter tva v. hill. this exception to the plain meaning rule is also sometimes phrased in terms of avoiding',
3266:'absurd consequences. e.g., united states v. ryan, 284 u.s. 167, 175 1931. as the dissenting opinion in tva v. hill',
3267:'points out 437 u.s. at 204 n.14, there is a bit of confusion in this respect in that crooks—again, cited',
3268:'with approval by the majority in tva v. hill— explicitly states that avoiding absurd consequences is not enough, although the',
3269:'court has used the absurd consequence formulation in postcrooks cases such as ryan. in any event, as a comparison of',
3270:'the majority and dissenting opinions in tva v. hill will demonstrate, the absurd consequences test is not always easy to',
3271:'apply in that what strikes one person as absurd may be good law to another. 73 the decision had nothing',
3272:'to do with equality of the sexes; the “boys” were all off fighting world war i. page 281 gao04261sp appropriations',
3273:'law—vol. i chapter 2 the legal framework the case of united states v. singleton, 144 f.3d 1343 10th cir. 1998,',
3274:'vacated on reh’g en banc, 165 f.3d 1297, cert. denied, 527 u.s. 1024 1999, provides another illustration of this point.',
3275:'ms. singleton was convicted of various crimes following testimony against her by a witness who had received a plea bargain',
3276:'in exchange for his testimony. she maintained that her conviction was tainted because the plea bargain constituted a violation of',
3277:'18 u.s.c. § 201c2, which provides in part: “whoever … directly or indirectly … promises anything of value to any',
3278:'person, … because of the testimony under oath or affirmation given or to be given by such person as a',
3279:'witness upon trial … before any court … shall be fined under this title or imprisoned for not more than',
3280:'two years, or both.” a three judge panel of the tenth circuit agreed and reversed her conviction. they held that',
3281:'the word “whoever” by its plain terms applied to the federal prosecutor and, just as plainly, the plea bargain promised',
3282:'something of value because of testimony to be given as a witness upon trial. the full tenth circuit vacated the',
3283:'panel’s ruling and reinstated the conviction. the majority held that the panel’s construction of the statute was “patently absurd” and',
3284:'contradicted longstanding prosecutorial practice. 165 f.3d at 1300. the three original panel members remained unconvinced and dissented. far from being',
3285:'“absurd,” they viewed their construction as a “straightforward interpretation” of the statute that honored important constitutional values. one such value,',
3286:'they said, was “the proper role of the judiciary as the lawinterpreting, rather than lawmaking, branch of the federal government.”',
3287:'id. at 1309. while the absurd consequences rule must be invoked with care, it does have useful applications. the comptroller',
3288:'general invoked this rule in holding that an appropriation act proviso requiring competition in the award of certain grants did',
3289:'not apply to community development block grants, which were allocated by a statutory formula. b285794, dec. 5, 2000 “without an',
3290:'affirmative expression of such intent, we are unwilling to read the language of the questioned proviso in a way that',
3291:'would clearly produce unreasonable and impractical consequences.”. see also b260759, may 2, 1995 rejecting a literal reading of a statutory',
3292:'provision that would defeat its purpose and produce anomalous results. page 282 gao04261sp appropriations law—vol. i chapter 2 the legal',
3293:'framework 4. statutory aids to construction a. definitions, effective dates, and severability clauses b. the dictionary act the remainder of',
3294:'this section discusses various sources to assist in determining the meaning of statutory language, plain or otherwise. we start with',
3295:'sources that are contained in the statute being construed or in other statutes that provide interpretive guidance for general application.',
3296:'the main advantage of these statutory aids is that, as laws themselves, they carry authoritative weight. their main disadvantage is',
3297:'that, while useful on occasion, they have limited scope and address relatively few issues of interpretation. statutes frequently contain their',
3298:'own set of definitions for terms that they use. obviously, these definitions take precedence over other sources to the extent',
3299:'that they apply. a statute may also contain an effective date provision that sets forth a date or dates when',
3300:'it will become operative. these provisions are most frequently used when congress intends to delay or phase in the effectiveness',
3301:'of a statute in whole or in part. the general rule, even absent an effective date provision, is that statutes',
3302:'take effect on the date of their enactment and apply prospectively. see, e.g., b300866, may 30, 2003, and authorities cited.',
3303:'therefore, effective date provisions are unnecessary if the normal rule is intended. later in this chapter we will discuss more',
3304:'complicated issues concerning the retroactive application of statutes. another provision sometimes included is a socalled “severability” clause. the purpose of',
3305:'this provision is to set forth congressional intent in the unhappy event that part of a statute is held to',
3306:'be unconstitutional. the clause states whether or not the remainder of the statute should be “severed” from the unconstitutional part',
3307:'and continue to be operative. again, the general rule is that statutes will be considered severable absent a provision to',
3308:'the contrary or some other clear indication of congressional intent that the whole statute should fall if part of it',
3309:'is declared unconstitutional. thus, the clause is unnecessary in the usual case. however, the absence of a severability clause will',
3310:'not create a presumption against severability. see, e.g., new york v. united states, 505 u.s. 144, 186– 187 1992. chapter',
3311:'1 of title 1 of the united states code, §§ 1–8, commonly known as the “dictionary act,” provides certain rules',
3312:'of construction and definitions that apply generally to federal statutes. for example, section 1 provides in part: page 283 gao04261sp',
3313:'appropriations law—vol. i chapter 2 the legal framework “in determining the meaning of any act of congress, unless the context',
3314:'indicates otherwise— “the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well',
3315:'as individuals … .” occasionally, the courts use the dictionary act to resolve questions of interpretation. e.g., united states v.',
3316:'reid, 206 f. supp. 2d 132 d. mass. 2002 an aircraft is not a “vehicle” for purposes of the usa',
3317:'patriot act; united states v. belgarde, 148 f. supp. 2d 1104 d. mont., aff’d, 300 f.3d 1177 9th cir. 2001',
3318:'a government agency, which the defendant was charged with burglarizing, is not a “person” for purposes of the major crimes',
3319:'act. courts also hold on occasion that the dictionary act does not apply. see rowland v. california men’s colony, 506',
3320:'u.s. 194 1993 context refutes application of the title 1, united states code, definition of “person”. c. effect of codification',
3321:'congress regularly passes laws that “codify,” or enact into positive law, the contents of various titles of the united states',
3322:'code. the effect of such codifications is to make that united states code title the official evidence of the statutory',
3323:'language it contains.74 codification acts typically delete obsolete provisions and make other technical and clarifying changes to the statutes they',
3324:'codify. codification acts usually include language stating that they should not be construed as making substantive changes in the laws',
3325:'they replace. see, e.g., pub. l. no. 97258, § 4a, 96 stat. 877, 1067 1982 codifying title 31 of the',
3326:'united states code; 69 comp. gen. 691 1990.75 74 if united states national bank of oregon v. independent insurance agents',
3327:'of america, inc., 508 u.s. 439 1993, discussed above, had involved codified provisions of law, the court’s task would have',
3328:'been much easier. in fact, the case probably would never have arisen. 75 background information about the nature and status',
3329:'of codification efforts can be found on the web site of the office of the law revision counsel, u.s. house',
3330:'of representatives: http://uscode.house.gov. page 284 gao04261sp appropriations law—vol. i chapter 2 the legal framework 5. canons of statutory construction a.',
3331:'construe the statute as a whole as discussed previously, under the plain meaning rule—the overriding principle of statutory construction—the meaning',
3332:'of a statute must be anchored in its text. over the years, courts have developed a host of conventions or',
3333:'guidelines for ascertaining the meaning of statutory text that are usually referred to as “canons” of construction. they range from',
3334:'broad principles that apply in virtually every case such as the canon that statutes are construed as a whole to',
3335:'narrow rules that apply in limited contexts. like all other aids to construing statutes, the canons represent rules of thumb',
3336:'that are often useful but do not lend themselves to mechanistic application or slavish adherence. as the supreme court observed',
3337:'in chickasaw nation v. united states: “[c]anons are not mandatory rules. they are guides that need not be conclusive… .',
3338:'they are designed to help judges determine the legislature’s intent as embodied in particular statutory language. and other circumstances evidencing',
3339:'congressional intent can overcome their force.” 534 u.s. 84, 94 2001 citations and quotation marks omitted. one problem with the',
3340:'canons is that they often appear to contradict each other. in a frequently cited law review article, professor karl llewellyn',
3341:'presented an analysis demonstrating that for many canons, there was an offsetting canon to the opposite effect.76 recognizing their limitations,',
3342:'this section will briefly describe some of the more frequently invoked canons. we start with one canon that virtually always',
3343:'applies and is rarely if ever contradicted. as sutherland puts it: 76 karl n. llewellyn, remarks on the theory of',
3344:'appellate decision and the rules or canons about how statutes are to be construed, 3 vand. l. rev. 395 1950.',
3345:'the supreme court has recognized the contradictory nature of canons. e.g., circuit city stores, inc. v. adams, 532 u.s. 105,',
3346:'115 2001 “canons of construction need not be conclusive and are often countered, of course, by some maxim pointing in',
3347:'a different direction.”; landgraf v. usi film products, 511 u.s. 244, 263 1994 “it is not uncommon to find ‘apparent',
3348:'tension’ between different canons of statutory construction. as professor llewellyn famously illustrated, many of the traditional canons have equal opposites.”.',
3349:'page 285 gao04261sp appropriations law—vol. i chapter 2 the legal framework “a statute is passed as a whole and not',
3350:'in parts or sections and is animated by one general purpose and intent. consequently, each part or section should be',
3351:'construed in connection with every other part or section so as to produce a harmonious whole.” 2a sutherland, § 46:05',
3352:'at 154. like all other courts, the supreme court follows this venerable canon. e.g., united states v. cleveland indians baseball',
3353:'co., 532 u.s. 200, 217 2001 “it is, of course, true that statutory construction ‘is a holistic endeavor’ and that',
3354:'the meaning of a provision is ‘clarified by the remainder of the statutory scheme’”; fda v. brown & williamson tobacco',
3355:'corp., 529 u.s. 120 2000; gustafson v. alloyd co., inc., 513 u.s. 561, 569 1995 “the act is to be',
3356:'interpreted as a symmetrical and coherent regulatory scheme, one in which the operative words have a consistent meaning throughout”; brown',
3357:'v. gardner, 513 u.s. 115, 118 1994 “[a]mbiguity is a creature not of definitional possibilities but of statutory context”. the',
3358:'court elaborated on this canon in fda v. brown & williamson tobacco corp., noting as well that the “holistic” approach',
3359:'may embrace more than a single statute: “[a] reviewing court should not confine itself to examining a particular statutory provision',
3360:'in isolation. the meaning—or ambiguity—of certain words or phrases may only become evident when placed in context… . it is',
3361:'a fundamental canon of statutory construction that the words of a statute must be read in their context and with',
3362:'a view to their place in the overall statutory scheme… . a court must therefore interpret the statute as a',
3363:'symmetrical and coherent regulatory scheme, … and fit, if possible, all parts into an harmonious whole… . similarly, the meaning',
3364:'of one statute may be affected by other acts, particularly where congress has spoken subsequently and more specifically to the',
3365:'topic at hand.” 529 u.s. at 132–133 citations and quotation marks omitted. comptroller general decisions, of course, also follow this',
3366:'canon: page 286 gao04261sp appropriations law—vol. i chapter 2 the legal framework “in interpreting provisions of a statute, we follow',
3367:'the settled rule of statutory construction that provisions with unambiguous language and specific directions may not be construed in any',
3368:'manner that will alter or extend their plain meaning… . however, if giving effect to the plain meaning of words',
3369:'in a statute leads to an absurd result which is clearly unintended and at variance with the policy of the',
3370:'legislation as a whole, the purpose of the statute rather than its literal words will be followed… . consequently, statutory',
3371:'phrases and individual words cannot be viewed in isolation.” b287158, oct. 10, 2002 citations omitted.77 the following decisions illustrate applications',
3372:'of the “whole statute” rule: b290125.2, b290125.3, dec. 18, 2002 redacted: viewed in isolation, the phrase “notwithstanding any other provision',
3373:'of law” might be read as exempting a procurement from gao’s bid protest jurisdiction under the competition in contracting act.',
3374:'however, when the statute is read as a whole, as it must be, it does not exempt the procurement from',
3375:'the act. b286661, jan. 19, 2001: the department of energy’s interpretation of the statutory phrase “expenses of privatization” conflicts with',
3376:'the plain meaning of the statute as a whole as well as the legislative history. b261522, sept. 29, 1995: the',
3377:'statute as a whole supports the social security administration’s contention that it can use wage data collected by the internal',
3378:'revenue service in certifying wages to the secretary of the treasury. b. give effect to all the closely related to',
3379:'the “whole statute” canon is the canon that all words of a language: no “surplusage” statute should be given effect,',
3380:'if possible. the theory is that all of the words have meaning since congress does not include unnecessary language, or',
3381:'“surplusage.” 77 this decision held that, absent a specific appropriation, the railroad retirement board had no obligation to repay certain',
3382:'funds that had been transferred to it from the treasury. while the statute that transferred the funds characterized them as',
3383:'a “loan,” it also clearly provided that repayment was required only if an appropriation was enacted for that purpose. page',
3384:'287 gao04261sp appropriations law—vol. i chapter 2 the legal framework the courts and the comptroller general regularly invoke the “no',
3385:'surplusage” canon. some examples follow: plaut v. spendthrift farm, inc., 514 u.s. 211, 216 1995: words in a statute will',
3386:'not be treated as “utterly without effect” even if the consequence of giving them effect is to render the statute',
3387:'unconstitutional. ratzlaf v. united states, 510 u.s. 135, 140–141 1994: the no surplusage canon applies with even greater weight when',
3388:'the arguably surplus words are part of the elements of a crime. in this case, the court declined to treat',
3389:'as surplusage the word “willfully” in a statute that subjected to criminal penalties anyone willfully violating certain prohibitions. 70 comp.',
3390:'gen. 351 1991: appropriation act language stating that none of the funds provided in this or any other act shall',
3391:'hereafter be used for certain purposes constitutes permanent legislation. the argument that the word hereafter should be construed only to',
3392:'mean that the provision took effect on the date of its enactment is unpersuasive. since statutes generally take effect on',
3393:'their date of enactment, this construction would inappropriately render the word hereafter superfluous. b261522, sept. 29, 1995: the social security',
3394:'act requires the social security administration to calculate employee wage data “in accordance with such reports” of wages filed by',
3395:'employers with the internal revenue service irs. the “such reports” language cannot be read as referring only to a particular',
3396:'report that the irs no longer requires since this would render the language meaningless, contrary to established maxims of statutory',
3397:'construction. although frequently invoked, the no surplusage canon is less absolute than the “whole statute” canon. one important caveat, previously',
3398:'discussed, is that words in a statute will be treated as surplus and disregarded if they were included in error.',
3399:'e.g., chickasaw nation v. united states, 534 u.s. 84, 94 2001 emphasis in original: “the canon requiring a court to',
3400:'give effect to each word ‘if possible’ is sometimes offset by the canon that permits a court to reject words',
3401:'‘as surplusage’ if ‘inadvertently inserted or if repugnant to the rest of the statute …’” page 288 gao04261sp appropriations law—vol.',
3402:'i chapter 2 the legal framework c. apply the common meaning of words d. give a common construction to the',
3403:'same or similar words when words used in a statute are not specifically defined, they are generally given their “plain”',
3404:'or ordinary meaning rather than some obscure usage. e.g., asgrow seed co. v. winterboer, 513 u.s. 179, 187 1995; federal',
3405:'deposit insurance corp. v. meyer, 510 u.s. 471, 476 1994; mallard v. united states, 490 u.s. 296, 301 1989; 70',
3406:'comp. gen. 705 1991; 38 comp. gen. 812 1959; b261193, aug. 25, 1995. one commonsense way to determine the plain',
3407:'meaning of a word is to consult a dictionary. e.g., mallard, 490 u.s. at 301; american mining congress v. epa,',
3408:'824 f.2d 1177, 1183–84 & n.7 d.c. cir. 1987. thus, the comptroller general relied on the dictionary in b251189, apr.',
3409:'8, 1993, to hold that business suits did not constitute “uniforms,” which would have permitted the use of appropriated funds',
3410:'for their purchase. see also b261522, sept. 29, 1995. as a perusal of any dictionary will show, words often have',
3411:'more than one meaning.78 the plain meaning will be the ordinary, everyday meaning. e.g., mallard, 490 u.s. at 301; 38',
3412:'comp. gen. 812 1959. if a word has more than one ordinary meaning and the context of the statute does',
3413:'not make it clear which is being used, there may well be no plain meaning for purposes of that statute.',
3414:'see smith v. united states, 508 u.s. 223 1993, discussed previously. when congress uses the same term in more than',
3415:'one place in the same statute, it is presumed that congress intends for the same meaning to apply absent evidence',
3416:'to the contrary. e.g., united states v. cleveland indians baseball club, 532 u.s. 200, 213 2001; ratzlaf v. united states,',
3417:'510 u.s. 135 1994. the comptroller general stated the principle as follows in 29 comp. gen. 143, 145 1949, a',
3418:'case involving the term “pay and allowances”: “[i]t is a settled rule of statutory construction that it is reasonable to',
3419:'assume that words used in one place in a legislative enactment have the same meaning in every other place in',
3420:'the statute and that consequently other sections in which the same phrase is used may be resorted to as an',
3421:'aid in determining the meaning thereof; and, if the meaning of 78 “a word is not a crystal, transparent and',
3422:'unchanged, it is the skin of a living thought and may vary greatly in color and content according to the',
3423:'circumstances and the time in which it is used.” towne v. eisner, 245 u.s. 418, 425 1918 holmes, j.. page',
3424:'289 gao04261sp appropriations law—vol. i chapter 2 the legal framework the phrase is clear in one part of the statute',
3425:'and in others doubtful or obscure, it is in the latter case given the same construction as in the former.”',
3426:'a corollary to this principle is that when congress uses a different term, it intends a different meaning. e.g., 56',
3427:'comp. gen. 655, 658 1977 term “taking line” presumed to have different meaning than “taking area,” which had been used',
3428:'in several other sections in the same statute. several different canons of construction revolve around these seemingly straightforward notions. before',
3429:'discussing some of them, it is important to note once more that these canons, like most others, may or may',
3430:'not make sense to apply in particular settings. indeed, the basic canon that the same words have the same meaning',
3431:'in a statute is itself subject to exceptions. in cleveland indians baseball club, the court cautioned: “although we generally presume',
3432:'that identical words used in different parts of the same act are intended to have the same meaning, … the',
3433:'presumption is not rigid, and the meaning [of the same words] well may vary with the purposes of the law.”',
3434:'532 u.s. at 213 citations and quotation marks omitted. to drive the point home, the court quoted the following admonition',
3435:'from a law review article: “the tendency to assume that a word which appears in two or more legal rules,',
3436:'and so in connection with more than one purpose, has and should have precisely the same scope in all of',
3437:'them … has all the tenacity of original sin and must constantly be guarded against.” id. of course, all bets',
3438:'are off if the statute clearly uses the same word differently in different places. see robinson v. shell oil co.,',
3439:'519 u.s. 337, 343 1997 “[o]nce it is established that the term ‘employees’ includes former employees in some sections, but',
3440:'not in others, the term standing alone is necessarily ambiguous”. two canons are frequently applied to the use of similar—but',
3441:'not identical— words in a statute when they are part of the same phrase. these canons are known as “ejusdem',
3442:'generis,” or “of the same kind,” and “noscitur a sociis,” loosely meaning that words are known by the company they',
3443:'keep. page 290 gao04261sp appropriations law—vol. i chapter 2 the legal framework in washington state department of social and health',
3444:'services v. guardianship estate of keffeler, 537 u.s. 371 2003, the issue was whether the state’s retention of social security',
3445:'act benefits to cover some of its costs for providing foster care violated a provision of the act that shielded',
3446:'benefits from “execution, levy, attachment, garnishment, or other legal process.” the court noted that, under the two canons— “ ‘where',
3447:'general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in',
3448:'nature to those objects enumerated by the preceding specific words.’” 537 u.s. at 379, quoting circuit city stores, inc. v.',
3449:'adams, 532 u.s. 105, 114–115 2001. applying the canons, the court held that the state’s receipt of the social security',
3450:'benefits as a “representative payee” did not constitute “other legal process” within the act’s meaning. it reasoned that, based on',
3451:'the accompanying terms, “other legal process” required at a minimum the use of some judicial or quasijudicial process. gustafson v.',
3452:'alloyd co., 513 u.s. 561, 573–74 1995, concerned the scope of statute that defined the term “prospectus” to mean— “any',
3453:'prospectus, notice, circular, advertisement, letter, or communication, written or by radio or television, which offers any security for sale or',
3454:'confirms the sale of any security.” applying noscitur a sociis to the list of items in section 122, the court',
3455:'held that the definition of “prospectus” connoted some sort of public offering of a security and, therefore, did not extend',
3456:'to private sales agreements. the court also invoked the noscitur canon in gutierrez v. ada, 528 u.s. 250, 254–255 2000,',
3457:'to construe the term “any election”: “the reference to ‘any election’ is preceded by two references to gubernatorial election and',
3458:'followed by four. with ‘any election’ so surrounded, what could it refer to except an election for governor and lieutenant',
3459:'governor, the subject of such relentless repetition? to ask the question is merely to apply an interpretive rule as familiar',
3460:'outside the page 291 gao04261sp appropriations law—vol. i chapter 2 the legal framework e. punctuation, grammar, titles, and preambles are',
3461:'relevant but not controlling law as it is within, for words and people are known by their companions.” another familiar',
3462:'canon dealing with word patterns in statutes is “expressio unius est exclusio alterius,” meaning that the expression of one thing',
3463:'is the exclusion of another. sutherland describes this canon as simply embodying the commonsense notion that when people say one',
3464:'thing, they generally do not mean something else. 2a sutherland, § 45:14. as usual, care must be used in applying',
3465:'this canon. see barnhart v. peabody coal co., 537 u.s. 149 2003; united states v. vonn, 535 u.s. 55 2002.',
3466:'the court observed in vonn: “at best, as we have said before, the canon that expressing one item of a',
3467:'commonly associated group or series excludes another left unmentioned is only a guide, whose fallibility can be shown by contrary',
3468:'indications that adopting a particular rule or statute was probably not meant to signal any exclusion of its common relatives.”',
3469:'537 u.s. at 65 citations omitted. punctuation, grammar, titles, and preambles are part of the statutory text. as such, they',
3470:'are fair game for consideration in construing statutes. however, as discussed below, they carry less weight than the substantive terms',
3471:'of the statute. the common principle that applies to these sources is that they can be consulted to help resolve',
3472:'ambiguities in the substantive text, but they cannot be used to introduce ambiguity that does not otherwise exist. punctuation and',
3473:'grammar. punctuation may be taken into consideration when no better evidence exists. for example, whether an “except” clause is or',
3474:'is not set off by a comma may help determine whether the exception applies to the entire provision or just',
3475:'to the portion immediately preceding the “except” clause. e.g., b218812, jan. 23, 1987. punctuation was a relevant factor in the',
3476:'majority opinion in united states v. ron pair enterprises, inc., 489 u.s. 235, 241–42 1989. a number of additional cases,',
3477:'which we do not repeat here, are cited in justice o’connor’s dissenting opinion, 489 u.s. at 249. on the other',
3478:'hand, punctuation or the lack of it should never be the controlling factor. as the supreme court stated in united',
3479:'states national page 292 gao04261sp appropriations law—vol. i chapter 2 the legal framework bank of oregon v. independent insurance agents',
3480:'of america, inc., 508 u.s. 439, 454 1993, “a purported plainmeaning analysis based only on punctuation is necessarily incomplete and',
3481:'runs the risk of distorting a statute’s true meaning.” in that case, the court disregarded an interpretation based on the',
3482:'placement of quotation marks in a statute, finding that all other evidence in the statute pointed to a different interpretation.',
3483:'likewise, a statute’s grammatical structure is useful but not conclusive. in arcadia, ohio v. ohio power co., 498 u.s. 73',
3484:'1991, the court devoted considerable attention to the placement of the word “or” in a series of clauses. it questioned',
3485:'the interpretation proffered by one of the parties that would have given the language an awkward effect, noting: “in casual',
3486:'conversation, perhaps, such absentminded duplication and omission are possible, but congress is not presumed to draft its laws that way.”',
3487:'arcadia, ohio, 498 u.s. at 79. by contrast, in nobelman v. american savings bank, 508 u.s. 324, 330 1993, the',
3488:'court rejected an interpretation, noting: “we acknowledge that this reading of the clause is quite sensible as a matter of',
3489:'grammar. but it is not compelled.” titles and headings. the title of a statute is relevant in determining its scope',
3490:'and purpose. by “title” in this context we mean the line on the slip law immediately following the words “an',
3491:'act,” as distinguished from the statute’s “popular name,” if any. for example, public law 97177, 96 stat. 85 may 21,',
3492:'1982, is “an act [t]o require the federal government to pay interest on overdue payments, and for other purposes” title;',
3493:'section 1 says that the act may be cited as the “prompt payment act” popular name. a public law may',
3494:'or may not have a popular name; it always has a title. the title of an act may not be',
3495:'used to change the plain meaning of the enacting clauses. it is evidence of the act’s scope and purpose, however,',
3496:'and may legitimately be taken into consideration to resolve ambiguities. e.g., lapina v. williams, 232 u.s. 78, 92 1914; white',
3497:'v. united states, 191 u.s. 545, 550 1903; church of the holy trinity v. united states, 143 u.s. 457, 462–63',
3498:'1892; united states v. fisher, 6 u.s. 2 cranch 358, 386 1805; 36 comp. gen. 389 1956; 19 comp. gen.',
3499:'739, 742 1940. to illustrate, in church of the holy trinity, the court used the title of the statute in',
3500:'question, “an act to prohibit the importation and migration of foreigners and aliens under contract or agreement to perform labor',
3501:'in the united states,” as support for its conclusion that the statute was not page 293 gao04261sp appropriations law—vol. i',
3502:'chapter 2 the legal framework f. avoid constructions that pose constitutional problems intended to apply to professional persons, specifically in',
3503:'that case, ministers and pastors.79 the same considerations apply to a statute’s popular name and to the headings, or titles,',
3504:'of particular sections of the statute. see immigration & naturalization service v. st. cyr, 533 u.s. 289, 308–309 2001; pennsylvania',
3505:'department of corrections v. yeskey, 524 u.s. 206, 212 1998. in st. cyr, the supreme court concluded that a section',
3506:'entitled “elimination of custody review by habeas corpus” did not, in fact, eliminate habeas corpus jurisdiction. it found that the',
3507:'substantive terms of the section were less definitive than the title. preambles. federal statutes often include an introductory “preamble” or',
3508:'“purpose” section before the substantive provisions in which congress sets forth findings, purposes, or policies that prompted it to adopt',
3509:'the legislation. such preambles have no legally binding effect. however, they may provide indications of congressional intent underlying the law.',
3510:'sutherland states with respect to preambles: “[t]he settled principle of law is that the preamble cannot control the enacting part',
3511:'of the statute in cases where the enacting part is expressed in clear, unambiguous terms. in case any doubt arises',
3512:'in the enacted part, the preamble may be resorted to to help discover the intention of the law maker.” 2a',
3513:'sutherland, § 47:04 at 221–222.80 it is well settled that courts will attempt to avoid a construction of a statute',
3514:'that would render the statute unconstitutional. e.g., edward j. debartolo corp. v. florida gulf coast building & construction trades council,',
3515:'485 u.s. 568, 575 1988 and the host of precedents it cites in observing: 79 the utility of this principle',
3516:'will, of course, depend on the degree of specificity in the title. its value has been considerably diminished by the',
3517:'practice, found in many recent statutes such as the prompt payment act noted above, of adding on the words “and',
3518:'for other purposes.” 80 an interesting use of a preamble arose in association of american railroads v. surface transportation board,',
3519:'237 f.3d 676 d.c. cir. 2001. recognizing that the preamble lacked operative effect, the court nonetheless held that it was',
3520:'arbitrary and capricious for the agency to construe the statute without at least considering the policy set out in its',
3521:'preamble. page 294 gao04261sp appropriations law—vol. i chapter 2 the legal framework “[w]here an otherwise acceptable construction of a statute',
3522:'would raise serious constitutional problems, the court will construe the statute to avoid such problems unless such construction is plainly',
3523:'contrary to the intent of congress… . this cardinal principle … has for so long been applied by this court',
3524:'that it is beyond debate… . [t]he elementary rule is that every reasonable construction must be resorted to, in order',
3525:'to save a statute from unconstitutionality. this approach not only reflects the prudential concern that constitutional issues not be needlessly',
3526:'confronted, but also recognizes that congress, like this court, is bound by and swears an oath to uphold the constitution.',
3527:'the courts will therefore not lightly assume that congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden',
3528:'it.” citations and quotation marks omitted. as the court put it in immigration & naturalization service v. st. cyr, 533',
3529:'u.s. 289, 300 2001, where an alternative to a constitutionally problematic interpretation “is fairly possible, … we are obligated to',
3530:'construe the statute to avoid such problems.” citations and quotation marks omitted. two cases arising under the federal advisory committee',
3531:'act known as “faca”, 5 u.s.c. app. §§ 1 et seq., illustrate the lengths to which courts will go to',
3532:'avoid constitutional problems. in public citizen v. united states department of justice, 491 u.s. 440 1989, the court held that',
3533:'the justice department did not “utilize” within the meaning of faca an american bar association committee that reported to the',
3534:'department on federal judicial nominees and rated their qualifications. taking its lead from public citizen, the court of appeals for',
3535:'the district of columbia circuit held in association of american physicians & surgeons, inc. v. clinton, 997 f.2d 898 d.c.',
3536:'cir. 1993, that the first lady was a fulltime officer or employee of the federal government within the meaning of',
3537:'the act. therefore, a task force she chaired was exempt from faca under a provision of the act that excluded',
3538:'“any committee which is composed wholly of fulltime officers or employees of the federal government.” the constitutional issue in both',
3539:'public citizen and association of american physicians & surgeons was whether application of faca to the advisory committees involved in',
3540:'those cases would violate separation of powers by page 295 gao04261sp appropriations law—vol. i chapter 2 the legal framework infringing',
3541:'upon the president’s ability to obtain advice in the performance of his constitutional responsibilities.81 however, there are outer limits to',
3542:'interpretations designed to avoid constitutional problems. see pennsylvania department of corrections v. yeskey, 524 u.s. 206, 212 1998 “[t]hat doctrine',
3543:'[of avoidance] enters in only ‘where a statute is susceptible of two constructions’”; plaut v. spendthrift farm, inc., 514 u.s.',
3544:'211, 216 1995 “[t]o avoid a constitutional question by holding that congress enacted, and the president approved, a blank sheet',
3545:'of paper would indeed constitute ‘disingenuous evasion’”. 6. legislative history a. uses and limitations the term “legislative history” refers to,',
3546:'and is comprised of, the body of congressionally generated written documents relating to a bill from the time of introduction',
3547:'to the time of enactment. as we will discuss, there are at least two basic ways to use legislative history.',
3548:'one is to examine the documents that make up the legislative history in order to determine what they say about',
3549:'the meaning and intent of the legislation. the other is to examine the evolution of the bill’s language through the',
3550:'legislative process. changes made to a bill during its consideration are often instructive in determining its final meaning. legislative history',
3551:'is always relevant in the sense that it is never “wrong” to look at it. thus, as previously noted, most',
3552:'cases purporting to apply the plain meaning rule also review legislative history—if for no other reason than to establish that',
3553:'nothing in that history contradicts the court’s view of what the plain meaning is. the converse of the plain meaning',
3554:'rule is that it is legitimate and proper to resort to legislative history when the meaning of the statutory language',
3555:'is not plain on its face. again, we start with an early 81 the majority opinion in association of american',
3556:'physicians & surgeons placed heavy reliance on public citizen, noting that “[t]he court adopted, we think it is fair to',
3557:'say, an extremely strained construction of the word ‘utilized’ in order to avoid the constitutional question.” 997 f.2d at 906.',
3558:'both public citizen and association of american physicians & surgeons drew strongly worded concurring opinions along the same lines. the',
3559:'concurrences maintained that faca clearly applied by its plain terms to the respective groups, but that its application was unconstitutional',
3560:'as so applied. page 296 gao04261sp appropriations law—vol. i chapter 2 the legal framework supreme court passage, this one a',
3561:'famous statement by chief justice john marshall: “where the mind labours to discover the design of the legislature, it seizes',
3562:'every thing from which aid can be derived … .” united states v. fisher, 6 u.s. 2 cranch 358, 386',
3563:'1805. see also united states v. donruss co., 393 u.s. 297, 302–03 1969; caminetti v. united states, 242 u.s. 470,',
3564:'490 1917 legislative history “may aid the courts in reaching the true meaning of the legislature in cases of doubtful',
3565:'interpretation”. it is entirely proper to use legislative history to seek guidance on the purpose of a statute to see,',
3566:'for example, what kinds of problems congress wanted to address, or to confirm the apparent plain meaning, or to resolve',
3567:'ambiguities. a classic example of the latter is a statute using the words “science” or “scientific.” either term, without more,',
3568:'does not tell you whether the statute applies to the social sciences as well as the physical sciences. e.g., american',
3569:'kennel club, inc. v. hoey, 148 f.2d 920, 922 2nd cir. 1945; b181142, aug. 5, 1974 gao recommended that the',
3570:'term “science and technology” in a bill be defined to avoid this ambiguity. if the statute does not include a',
3571:'definition, you would look next to the legislative history. the use becomes improper when the line is crossed from using',
3572:'legislative history to resolve things that are not clear in the statutory language to using it to rewrite the statute.',
3573:'e.g., shannon v. united states, 512 u.s. 573, 583 1994 declining to give effect to “a single passage of legislative',
3574:'history that is in no way anchored in the text of the statute”; ratzlaf v. united states, 510 u.s. 135,',
3575:'147–148 1994 declining to “resort to legislative history to cloud a statutory text that is clear”. the comptroller general put',
3576:'it this way: “[a]s a general proposition, there is a distinction to be made between utilizing legislative history for the',
3577:'purpose of illuminating the intent underlying language used in a statute and resorting to that history for the purpose of',
3578:'writing into the law that which is not there.” 55 comp. gen. 307, 325 1975. page 297 gao04261sp appropriations law—vol.',
3579:'i chapter 2 the legal framework b. components and their relative weight a recent comptroller general decision illustrates this point.',
3580:'an appropriation rider sponsored by senator mccain prohibited the air force from using funds to lease certain aircraft “under any',
3581:'contract entered into under any procurement procedures other than pursuant to” the competition in contracting act cica, pub. l. no.',
3582:'98369, 98 stat. 1175 july 18, 1984, classified generally to 41 u.s.c. §§ 251 et seq. in a floor statement',
3583:'on the bill, senator mccain said that his language would require “full and open competition” for the aircraft and preclude',
3584:'a “sole source” award. however, cica clearly does not require full and open competition or prohibit solesource awards. therefore, the',
3585:'comptroller general upheld the air force’s award of a solesource contract: “since section 8147, by its plain terms, only requires',
3586:'compliance with cica, and does not provide that competitive procedures must be used for the boeing transport/vip aircraft procurement, we',
3587:'find no basis for reading such a requirement into the provision.” b291805, mar. 26, 2003. in discussing legislative history, we',
3588:'will first consider use of the explanatory documents that go into it. these documents fall generally into three categories: committee',
3589:'reports, floor debates, and hearings. for probative purposes, they bear an established relationship to one another. let us emphasize before',
3590:'proceeding, however, that listing items of legislative history in an “order of persuasiveness” is merely a guideline. the evidentiary value',
3591:'of any piece of legislative history depends on its relationship to other available legislative history and, most importantly, to the',
3592:'language of the statute. 1 committee reports the most authoritative single source of legislative history is the conference report. e.g.,',
3593:'united states v. commonwealth energy system & subsidiary cos., 235 f.3d 11, 16 1st cir. 2000; resolution trust corp. v.',
3594:'gallagher, 10 f.3d 416, 421 7th cir. 1993; squillacote v. united states, 739 f.2d 1208, 1218 7th cir. 1984; b142011,',
3595:'apr. 30, 1971. see also bay view, inc. v. united states, 278 f.3d 1259, 1264 fed. cir. 2001, cert. denied,',
3596:'537 u.s. 826 2002. this is especially true if the statutory language in question was drafted by the conference committee.',
3597:'the reason the conference report occupies the highest rung on the ladder is that it must be voted on and',
3598:'adopted by both houses of congress and thus is the only page 298 gao04261sp appropriations law—vol. i chapter 2 the',
3599:'legal framework legislative history document that can be said to reflect the will of both houses.commissioner of internal revenue v.',
3600:'acker, 361 u.s. 87, 94 1959 frankfurter, j., dissenting. next in sequence are the reports of the legislative committees that',
3601:'considered the bill and reported it out to their respective houses. the supreme court has consistently been willing to rely',
3602:'on committee reports when otherwise appropriate. e.g., demore v. hyung joon kim, 538 u.s. 510, 123 s. ct. 1708, 1714–1716',
3603:'2003; lorillard tobacco co. v. reilly, 533 u.s. 525, 543–544 2001; duplex printing press co. v. deering, 254 u.s. 443,',
3604:'474 1921; united states v. st. paul, minneapolis & manitoba railway co., 247 u.s. 310, 318 1918; lapina v. williams,',
3605:'232 u.s. 78, 90 1914. however, material in committee reports, even a conference report, will ordinarily not be used to',
3606:'controvert clear statutory language. squillacote, 739 f.2d at 1218; hart v. united states, 585 f.2d 1025 ct. cl. 1978; b278121,',
3607:'nov. 7, 1997; b33911, b62187, july 15, 1948. the following excerpt from a colloquy between senators armstrong and dole demonstrates',
3608:'why committee reports must be used with caution: “mr. armstrong. mr. president, did members of the finance committee vote on',
3609:'the committee report? “mr. dole. no. “mr. armstrong. mr. president, the reason i raise the issue is not perhaps apparent',
3610:'on the surface… . the report itself is not considered by the committee on finance. it was not subject to',
3611:'amendment by the committee on finance. it is not subject to amendment now by the senate. … “i only wish',
3612:'the record to reflect that this is not statutory language. it is not before us. if there were matter within',
3613:'this report which was disagreed to by the senator from colorado or even by a majority of all senators, there',
3614:'would be no way for us to change the report. i could not offer an amendment tonight to amend the',
3615:'committee report. page 299 gao04261sp appropriations law—vol. i chapter 2 the legal framework “… [f]or any jurist, administrator, bureaucrat, tax',
3616:'practitioner, or others who might chance upon the written record of this proceeding, let me just make the point that',
3617:'this is not the law, it was not voted on, it is not subject to amendment, and we should discipline',
3618:'ourselves to the task of expressing congressional intent in the statute.”82 notwithstanding the imperfections of the system, in those cases',
3619:'where there is a need to resort to legislative history, committee reports remain generally recognized as the best source. in',
3620:'this regard, sutherland observes: “increasingly, courts have turned to reports of standing committees for aid in interpretation. this movement has',
3621:'coincided with an improvement in the preparation of reports by standing committees and their counsel.” 2a sutherland, § 48:06 at',
3622:'445. 2 floor debates proceeding downward on the ladder, after committee reports come floor debates. statements made in the course',
3623:'of floor debates have traditionally been regarded as suspect in that they are “expressive of the views and motives of',
3624:'individual members.” duplex printing press co. v. deering, 254 u.s. 443, 474 1921. in addition— “[i]t is impossible to determine',
3625:'with certainty what construction was put upon an act by the members of a legislative body that passed it by',
3626:'resorting to the speeches of individual members thereof. those who did not speak may not have agreed with those who',
3627:'did, and those who spoke might differ from each other… ” united states v. transmissouri freight ass’n, 166 u.s. 290,',
3628:'318 1897. some of the earlier cases, such as transmissouri freight, indicate that floor debates should never be taken into',
3629:'consideration. under the more 82 128 cong. rec. 16918–19 1982, quoted in hirschey v. federal energy regulatory commission, 777 f.2d',
3630:'1, 7 n.1 d.c. cir. 1985 scalia, j., concurring. page 2100 gao04261sp appropriations law—vol. i chapter 2 the legal framework',
3631:'modern view, however, they may be considered, the real question being the weight they should receive in various circumstances. floor',
3632:'debates are less authoritative than committee reports. garcia v. united states, 469 u.s. 70, 76 1984; zuber v. allen, 396',
3633:'u.s. 168, 186 1969; united states v. o’brien, 391 u.s. 367, 385 1968; united states v. united automobile workers, 352',
3634:'u.s. 567, 585 1957; bay view, inc. v. united states, 278 f.3d 1259, 1264 fed. cir. 2001, cert. denied, 537',
3635:'u.s. 826 2002. it follows that they will not be regarded as persuasive if they conflict with explicit statements in',
3636:'more authoritative portions of legislative history such as committee reports. united states v. wrightwood dairy co., 315 u.s. 110, 125',
3637:'1942; b114829, june 27, 1975. conversely, they will carry more weight if they are mutually reenforcing. national data corp. &',
3638:'subsidiaries v. united states, 50 fed. cl. 24, 32, n.14 2001, aff’d, 291 f.3d 1381 fed. cir., cert. denied, 537',
3639:'u.s. 1045 2002.83 debates will carry considerably more weight when they are the only available legislative history as, for example,',
3640:'in the case of a postreport floor amendment. northeast bancorp, inc. v. board of governors of the federal reserve system,',
3641:'472 u.s. 159, 169–70 1985; preterm, inc. v. dukakis, 591 f.2d 121, 128 1st cir., cert. denied, 441 u.s. 952',
3642:'1979. indeed, the preterm court suggested that “heated and lengthy debates” in which “the views expressed were those of a',
3643:'wide spectrum” of members might be more valuable in discerning congressional intent than committee reports, “which represent merely the views',
3644:'of [the committee’s] members and may never have come to the attention of congress as a whole.” preterm, 591 f.2d',
3645:'at 133. the weight to be given statements made in floor debates varies with the identity of the speaker. thus,',
3646:'statements by legislators in charge of a bill, such as the pertinent committee chairperson, have been regarded as “in the',
3647:'nature of a supplementary report” and receive somewhat more weight. united states v. st. paul, minneapolis & manitoba railway co.,',
3648:'247 u.s. 310, 318 1918. see also mccaughn v. hershey chocolate co., 283 u.s. 488, 493–94 1931 statements by members',
3649:'“who were not in charge of the bill” were “without weight”; duplex v. deering, 254 u.s. at 474–75; 83 “here',
3650:'… we are faced not with a single, idle [member] statement, but rather a pattern of statements—and one that is',
3651:'consistent not only with the conference committee report’s emphasis … but also the statute’s language itself.” id. page 2101 gao04261sp',
3652:'appropriations law—vol. i chapter 2 the legal framework nlrb v. thompson products, inc., 141 f.2d 794, 798 9th cir. 1944.',
3653:'the supreme court’s statement in st. paul railway co. gave rise to the entirely legitimate practice of “making” legislative history',
3654:'by preparing questions and answers in advance, to be presented on the floor and answered by the member in charge',
3655:'of the bill.84 statements by the sponsor of a bill are also entitled to somewhat more weight. e.g., schwegmann brothers',
3656:'v. calvert distillers corp., 341 u.s. 384, 394–95 1951; ex parte kawato, 317 u.s. 69, 77 1942; bedroc limited v.',
3657:'united states, 50 f. supp.2d 1001, 1006 d. nev. 1999, aff’d, 314 f.3d 1080 9th cir. 2002. however, they are',
3658:'not controlling. chrysler corp. v. brown, 441 u.s. 281, 311 1979. statements by the opponents of a bill expressing their',
3659:'“fears and doubts” generally receive little, if any, weight. shell oil co. v. iowa department of revenue, 488 u.s. 19,',
3660:'29 1988; schwegmann, 341 u.s. at 394. however, even the statements of opponents may be “relevant and useful,” although not',
3661:'authoritative, in certain circumstances, such as where the supporters of a bill make no response to opponents’ criticisms. arizona v.',
3662:'california, 373 u.s. 546, 583 n.85 1963; parlane sportswear co. v. weinberger, 513 f.2d 835, 837 1st cir. 1975; bentley',
3663:'v. arlee home fashions, inc., 861 f. supp. 65, 67 e.d. ark. 1994. where senate and house floor debates suggest',
3664:'conflicting interpretations and there is no more authoritative source of legislative history available, it is legitimate to give weight to',
3665:'such factors as which house originated the provision in question and which house has the more detailed and “clear cut”',
3666:'history. steiner v. mitchell, 350 u.s. 247, 254 1956; 49 comp. gen. 411 1970. 3 hearings hearings occupy the bottom',
3667:'rung on the ladder. they are valuable for many reasons: they help define the problem congress is addressing; they present',
3668:'opposing viewpoints for congress to consider; and they provide the opportunity for public participation in the lawmaking process. as legislative',
3669:'history, however, they are the least persuasive form. the reason is that they reflect only the personal opinion and motives',
3670:'of the witness. it 84 the origin and use of this device were explained in a floor statement by former',
3671:'senator morse on march 26, 1964. see 110 cong. rec. 6423 1964. page 2102 gao04261sp appropriations law—vol. i c. postenactment',
3672:'statements chapter 2 the legal framework is more often than not impossible to attribute these opinions and motives to anyone',
3673:'in congress, let alone congress as a whole, unless more authoritative forms of legislative history expressly adopt them. as one',
3674:'court has stated, an isolated excerpt from the statement of a witness at hearings “is not entitled to consideration in',
3675:'determining legislative intent.” pacific insurance co. v. united states, 188 f.2d 571, 572 9th cir. 1951. “it would indeed be',
3676:'absurd,” said another court, “to suppose that the testimony of a witness by itself could be used to interpret an',
3677:'act of congress.” sec v. collier, 76 f.2d 939, 941 2nd cir. 1935. there is one significant exception. testimony by',
3678:'the government agency that recommended the bill or amendment in question, and which often helped draft it, is entitled to',
3679:'special weight. shapiro v. united states, 335 u.s. 1, 12 n.13 1948; sec v. collier, 76 f.2d at 941. also,',
3680:'testimony at hearings can be more valuable as legislative history if it can be demonstrated that the language of a',
3681:'bill was revised in direct response to that testimony. relevant factors include the presence or absence of statements in more',
3682:'authoritative history linking the change to the testimony; the proximity in time of the change to the testimony; and the',
3683:'precise language of the change as compared to what was offered in the testimony. see premachandra v. mitts, 753 f.2d',
3684:'635, 640–41 8th cir. 1985. see also allen v. state board of elections, 393 u.s. 544, 566–68 1969; sec v.',
3685:'collier, 76 f.2d at 940, 941. observers of the often difficult task of discerning congressional intent occasionally ask, isn’t there',
3686:'an easier way to do this? why don’t you just call the sponsor or the committee and ask what they',
3687:'had in mind? the answer is that postenactment statements have virtually no weight in determining prior congressional intent. the objective',
3688:'of statutory construction is to ascertain a collective intent, not an individual’s intent or, worse yet, an individual’s characterization of',
3689:'the collective intent. it is impossible to demonstrate that the substance of a post hoc statement reflects the intent of',
3690:'the preenactment congress, unless it can be corroborated by preenactment statements, in which event it would be unnecessary. or, as',
3691:'the supreme court has said: “since such statements cannot possibly have informed the vote of the legislators who earlier enacted',
3692:'the law, there is no more basis for considering them than there is to conduct postenactment polls of the original',
3693:'legislators.” page 2103 gao04261sp appropriations law—vol. i chapter 2 the legal framework pittston coal group v. sebben, 488 u.s. 105,',
3694:'118–19 1988. see also gustafson v. alloyd co., 513 u.s. 561, 580 1995 “if legislative history is to be considered,',
3695:'it is preferable to consult the documents prepared by congress when deliberating.”; 2a sutherland, § 48:04 to be considered legislative',
3696:'history, material should be generally available to legislators and relied on by them in passing the bill. in expressing their',
3697:'unwillingness to consider postenactment statements, courts have not viewed the identity of the speaker sponsor, committee, committee chairman, etc. or',
3698:'the form of the statement report, floor statement, letter, affidavit, etc. to be relevant. there are numerous cases in which',
3699:'the courts, and particularly the supreme court, have expressed the unwillingness to give weight to postenactment statements. see, e.g., bread',
3700:'political action committee v. federal election commission, 455 u.s. 577, 582 n.3 1982; quern v. mandley, 436 u.s. 725, 736',
3701:'n.10 1978; regional rail reorganization act cases, 419 u.s. 102, 132 1974; united states v. southwestern cable co., 392 u.s.',
3702:'157, 170 1968; haynes v. united states, 390 u.s. 85, 87 n.4 1968. see also general instrument corp. v. fcc,',
3703:'213 f.3d 724, 733 d.c. cir. 2000 referring to postenactment statements as “legislative future” rather than legislative history; cavallo v.',
3704:'utica watertown health insurance co., 3 f. supp. 2d 223, 230 n.d. n.y. 1998. courts have not found expressions of',
3705:'intent concerning previously enacted legislation that are made in committee reports or floor statements during the consideration of subsequent legislation',
3706:'to be relevant either. e.g., o’gilvie v. united states, 519 u.s. 79, 90 1996 “the view of a later congress',
3707:'cannot control the interpretation of an earlier enacted statute”; huffman v. office of personnel management, 263 f.3d 1341, 1354 fed.',
3708:'cir. 2001 postenactment statements made in the legislative history of the 1994 amendments have no bearing in determining the legislative',
3709:'intent of the drafters of the 1978 and 1989 legislation. gao naturally follows the principle that postenactment statements do not',
3710:'constitute legislative history. e.g., 72 comp. gen. 317 1993; 54 comp. gen. 819, 822 1975. likewise, the office of legal',
3711:'counsel has virtually conceded that presidential signing statements fall within the realm of post page 2104 gao04261sp appropriations law—vol. i',
3712:'chapter 2 the legal framework d. development of the statutory language enactment statements that carry no weight as legislative history.',
3713:'see 17 op. off. legal counsel 131 1993.85 as with all other principles relating to statutory interpretation, the rule against',
3714:'consideration of postenactment statements is not absolute. even postenactment material may be taken into consideration, despite its very limited value,',
3715:'when there is absolutely nothing else. see b169491, june 16, 1980. as previously noted, examination of legislative history includes not',
3716:'only what the drafters of a bill said about it, but also what they did to it as the bill',
3717:'progressed through the enactment process. changes made to a bill may provide insight into what the final language means. for',
3718:'example, the deletion from the final version of language that was in the original bill may suggest an intent to',
3719:'reject what was covered by that language. see generally 2a sutherland, § 48:04. the same is true of language offered',
3720:'in an amendment that was defeated. id., § 48:18. the courts consider the evolution of legislative language in different contexts.',
3721:'see, for example: chickasaw nation v. united states, 534 u.s. 84, 91 2001: the original senate bill applied both to',
3722:'taxation and to reporting and withholding. the final version applied only to reporting and withholding, thereby suggesting that a crossreference',
3723:'to another law dealing with taxation was left in by error. landgraf v. usi film products, 511 u.s. 244, 255–256',
3724:'1994: the president vetoed a 1990 version of a civil rights bill in part because he objected to the bill’s',
3725:'broad retroactivity provisions. this indicates that the absence of comparable retroactivity provisions in the version of the bill enacted in',
3726:'1991 was not an oversight, but rather part of a political compromise. see also resolution trust corp. v. gallagher, 10',
3727:'f.3d 416 423 7th cir. 1993; davis v. united states, 46 fed. cl. 421 2000. 85 while this opinion stopped',
3728:'short of attempting “finally to decide” the matter, it presented several powerful arguments against the validity of signing statements as',
3729:'legislative history but no arguments in favor of their use for this purpose. page 2105 gao04261sp appropriations law—vol. i chapter',
3730:'2 the legal framework as always, care must be exercised when interpreting language changes in a bill, particularly when the',
3731:'accompanying documents do not discuss them. unless the legislative history explains the reason for the omission or deletion or the',
3732:'reason is clear from the context, drawing conclusions is inherently speculative. perhaps congress did not want that particular provision; perhaps',
3733:'congress felt it was already covered in the same or other legislation. absent an explanation, the effect of such an',
3734:'omission or deletion is inconclusive. fox v. standard oil co., 294 u.s. 87, 96 1935; southern packaging & storage co.',
3735:'v. united states, 588 f. supp. 532, 549 d.s.c. 1984; 63 comp. gen. 498, 501–02 1984; 63 comp. gen. 470,',
3736:'472 1984. 7. presumptions and “clear statement” rules a. presumption in favor of judicial review in a perhaps growing number',
3737:'of specific areas, courts apply extra scrutiny in construing statutes that they regard as departing from traditional norms of legislation.',
3738:'in these areas, the courts require a greater than usual showing that congress did, in fact, mean to depart from',
3739:'the norm. typically, the courts will raise the bar by imposing a “presumption” that must be overcome in order to',
3740:'establish that congress intended the departure. alternatively but to the same effect, courts sometimes require a “clear statement” by congress',
3741:'that it intended the departure. such presumptions and clear statement rules have been described as “substantive canons” as opposed to',
3742:'“linguistic canons” since, rather than aiding in the interpretation of statutory language per se, they are designed to protect “substantive',
3743:'values drawn from the common law, federal statutes, or the united states constitution.”86 a few examples are given below. there',
3744:'is a “strong presumption” in favor of judicial review of administrative actions. e.g., demore v. hyung joon kim, 538 u.s.',
3745:'510, 123 s. ct. 1708 2003; immigration & naturalization service v. st. cyr, 533 u.s. 289 2001; mcnary v. haitian',
3746:'refugee center, inc., 498 u.s. 479 1991; bowen v. michigan academy of family physicians, 476 u.s. 667 1986. in bowen,',
3747:'the court stated the presumption as follows: 86 william n. eskridge, jr., and philip p. frickey, quasiconstitutional law: clear statement',
3748:'rules as constitutional lawmaking, 45 vand. l. rev. 593 1992. page 2106 gao04261sp appropriations law—vol. i chapter 2 the legal',
3749:'framework “we begin with the strong presumption that congress intends judicial review of administrative action. from the beginning, ‘our cases',
3750:'[have established] that judicial review of a final agency action by an aggrieved person will not be cut off unless',
3751:'there is persuasive reason to believe that such was the purpose of congress.’” 476 u.s. at 670, quoting abbott laboratories',
3752:'v. gardner, 387 u.s. 136, 140 1967. the court in bowen went on to note that the presumption of reviewability',
3753:'can be rebutted: “subject to constitutional constraints, congress can, of course, make exceptions to the historic practice whereby courts review',
3754:'agency action. the presumption of judicial review is, after all, a presumption, and like all presumptions used in interpreting statutes,',
3755:'may be overcome by, inter alia, specific language or specific legislative history that is a reliable indicator of congressional intent',
3756:'or a specific congressional intent to preclude judicial review that is fairly discernable in the detail of the legislative scheme.”',
3757:'id. at 672–673 quotation marks omitted. later decisions indicate that a particularly strong showing is required to establish a congressional',
3758:'intent to preclude judicial review of constitutional claims through habeas corpus petitions. see demore and st. cyr, supra. thus, the',
3759:'court observed in st. cyr, 533 u.s. at 299: “implications from statutory text or legislative history are not sufficient to',
3760:'repeal habeas jurisdiction; instead, congress must articulate specific and unambiguous statutory directives to effect repeal.” finally, it is important to',
3761:'note one area in which the usual presumption in favor of judicial review becomes a presumption against judicial review: exercises',
3762:'of discretion by the president. in franklin v. massachusetts, 505 u.s. 788 1992, the supreme court held that the president',
3763:'is not an “agency” for purposes of the administrative procedure act apa; therefore, presidential actions are not subject to judicial',
3764:'review under the page 2107 gao04261sp appropriations law—vol. i chapter 2 the legal framework b. presumption against retroactivity apa. the',
3765:'court recognized that the general definition of “agency” in the apa 5 u.s.c. § 5511 covered “each authority of the',
3766:'government of the united states” and that the president was not explicitly excluded from this definition. however, the court held:',
3767:'“out of respect for the separation of powers and the unique constitutional position of the president, we find that textual',
3768:'silence is not enough to subject the president to the provisions of the apa. we would require an express statement',
3769:'by congress before assuming it intended the president’s performance of his statutory duties to be reviewed for abuse of discretion.”',
3770:'505 u.s. at 800–801 emphasis supplied. several subsequent cases have followed and extended franklin. see dalton v. specter, 511 u.s.',
3771:'462 1994; tulare county v. bush, 185 f. supp. 2d 18 d.d.c. 2001, aff’d, 306 f.3d 1138 d.c. cir. 2002,',
3772:'reh’g en banc denied, 317 f.3d 227 d.c. cir., cert. denied, u.s. , 71 u.s.l.week 3724 oct. 6, 2003.87 as',
3773:'noted previously, statutes and amendments to statutes generally are construed to apply prospectively only that is, from their date of',
3774:'enactment or other effective date if one is specified. however, while congress generally has the power to enact retroactive statutes,',
3775:'88 the supreme court has held: “retroactivity is not favored in the law. thus, congressional enactments … will not be',
3776:'construed to have retroactive effect unless their language requires this result.” bowen v. georgetown university hospital, 488 u.s. 204, 208',
3777:'1988. 87 the “express statement” rule does not, however, extend to judicial review of the constitutionality of presidential actions. dalton,',
3778:'511 u.s. at 469, 473–474; franklin, 505 u.s. at 801. 88 one exception is the constitution’s prohibition against “ex post',
3779:'facto” laws u.s. const. art. i, § 9, cl. 3, which precludes penal statutes from operating retroactively. another exception, based',
3780:'on separation of powers considerations, prevents congress from enacting laws that have the effect of requiring federal courts to reopen',
3781:'final judgments. plaut v. spendthrift farm, inc., 514 u.s. 211 1995. page 2108 gao04261sp appropriations law—vol. i chapter 2 the',
3782:'legal framework the court reaffirmed the presumption against retroactivity of statutes in several recent decisions. e.g., immigration & naturalization service',
3783:'v. st. cyr, 533 u.s. 289 2001; martin v. hadix, 527 u.s. 343 1999; lindh v. murphy, 521 u.s. 320',
3784:'1997; landgraf v. usi film products, 511 u.s. 244 1994. in landgraf, the court elaborated on the policies supporting the',
3785:'presumption against retroactivity: “because it accords with widely held intuitions about how statutes ordinarily operate, a presumption against retroactivity will',
3786:'generally coincide with legislative and public expectations. requiring clear intent assures that congress itself has affirmatively considered the potential unfairness',
3787:'of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits. such a requirement',
3788:'allocates to congress responsibility for fundamental policy judgments concerning the proper temporal reach of statutes, and has the additional virtue',
3789:'of giving legislators a predictable background rule against which to legislate.” 511 u.s. at 272–273. landgraf also resolved the “apparent',
3790:'tension” between the presumption against retroactivity in its bowen line of decisions and another decision, bradley v. richmond school board,',
3791:'416 u.s. 696 1974, which held that when a law changes subsequent to the judgment of a lower court, an',
3792:'appellate court must apply the new law, that is, the law in effect when it renders its decision, unless applying',
3793:'the new law would produce “manifest injustice” or unless there is statutory direction or legislative history to the contrary.89 it',
3794:'affirmed that the presumption embraces statutes that have “genuinely” retroactive effect, by which it meant statutes that apply new 89',
3795:'previously, the court had acknowledged but left unresolved the “apparent tension” between bradley and bowen. see kaiser aluminum & chemical',
3796:'corp. v. bonjorno, 494 u.s. 827, 837 1990. page 2109 gao04261sp appropriations law—vol. i chapter 2 the legal framework standards',
3797:'“affecting substantive rights, liabilities, or duties” to conduct that occurred prior to their enactment. 511 u.s. at 277–278.90 by way',
3798:'of summary, the supreme court in landgraf set forth the following test for determining whether the presumption against retroactivity applies:',
3799:'“when a case implicates a federal statute enacted after the events in suit, the court’s first task is to determine',
3800:'whether congress has expressly prescribed the statute’s proper reach. if congress has done so, of course, there is no need',
3801:'to resort to judicial default rules. when, however, the statute contains no such express command, the court must determine whether',
3802:'the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase',
3803:'a party’s liability for past conduct, or impose new duties with respect to transactions already completed. if the statute would',
3804:'operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.” id.',
3805:'at 280. the comptroller general also applies the traditional rule that statutes are not construed to apply retroactively unless a',
3806:'retroactive construction is required by their express language or by necessary implication or unless it is demonstrated that this is',
3807:'what congress clearly intended. 64 comp. gen. 493 1985; 38 comp. gen. 103 1958; 34 comp. gen. 404 1955; 28',
3808:'comp. gen. 162 1948; 16 comp. gen. 1051 1937; 7 comp. gen. 266 1927; 5 comp. gen. 381 1925; 2',
3809:'comp. gen. 267 1922; 26 comp. dec. 40 1919; b205180, nov. 27, 1981; b191190, feb. 13, 1980; b162208, aug. 28,',
3810:'1967. 90 specifically, the court held that a provision of the civil rights act of 1991 that created a new',
3811:'cause of action for certain civil rights violations could not be added to a lawsuit pending at the time the',
3812:'1991 act was signed into law since the conduct involved in that lawsuit occurred before the 1991 act was enacted.',
3813:'on the other hand, “procedural” changes, such as provisions for jury trials in certain civil rights actions, ordinarily could apply',
3814:'to lawsuits pending at the time of enactment. in this case, however, the provision for jury trial would not apply',
3815:'since it was limited to the newly created cause of action. page 2110 gao04261sp appropriations law—vol. i c. federalism presumptions',
3816:'chapter 2 the legal framework this rule was recently applied to a statute pub. l. no. 107103, § 605, 115',
3817:'stat. 976, 1000 dec. 27, 2001 that authorized the united states court of appeals for veterans claims to reimburse its',
3818:'employees for a portion of their professional liability insurance payments. since nothing in the statute or its legislative history indicated',
3819:'that the statute was to have retroactive effect, the comptroller general held that the statute did not authorize reimbursement for',
3820:'insurance payments made prior to december 27, 2001. b300866, may 30, 2003. another line of cases has dealt with a',
3821:'different aspect of retroactivity. gao is reluctant to construe a statute to retroactively abolish or diminish rights that had accrued',
3822:'before its enactment unless this was clearly the legislative intent. for example, the tax reduction act of 1975 authorized $50',
3823:'“special payments” to certain taxpayers. legislation in 1977 abolished the special payments as of its date of enactment. gao held',
3824:'in b190751, apr. 11, 1978, that payments could be made where payment vouchers were validly issued before the cutoff date',
3825:'but lost in the mail. similarly, payments could be made to eligible claimants whose claims had been erroneously denied before',
3826:'the cutoff but were later found valid. b190751, sept. 26, 1980. under the constitution’s supremacy clause u.s. const. art. vi,',
3827:'cl. 2, congress, when acting within the scope of its own assigned constitutional authority, can preempt state and local laws.',
3828:'as the court noted in wisconsin public intervenor v. mortier, 501 u.s. 597, 604 1991, “[t]he ways in which federal',
3829:'law may preempt state law are well established and in the first instance turn on congressional intent.” specifically, congress may',
3830:'preempt either by an explicit statutory provision or by establishing a federal statutory scheme that is so pervasive as to',
3831:'leave no room for supplementation by the states. in either event, however, the court stated: “when considering preemption, ‘we start',
3832:'with the assumption that the historic police powers of the states were not to be superseded by the federal act',
3833:'unless that was the clear and manifest purpose of congress.’” 501 u.s. at 605, quoting rice v. santa fe elevator',
3834:'corp., 331 u.s. 218, 230 1947. the court continues to apply the “clear and manifest purpose” test to preemption cases.',
3835:'see city of columbus v. ours garage and wrecker service, inc., 536 u.s. 424 2002. in city of columbus, the',
3836:'court construed a statute that included an explicit preemption provision; the page 2111 gao04261sp appropriations law—vol. i chapter 2 the',
3837:'legal framework issue concerned its scope. acknowledging that the language could be read to preempt safety regulation by local governments,',
3838:'the court refused to find preemption: “[r]eading [the statute’s] set of exceptions in combination, and with a view to the',
3839:'basic tenets of our federal system pivotal in mortier, we conclude that the statute does not provide the requisite ‘clear',
3840:'and manifest indication that congress sought to supplant local authority.’” 536 u.s. at 434. there also is a presumption against',
3841:'construing federal statutes to abrogate the immunity from suit that states enjoy under the eleventh amendment to the united states',
3842:'constitution. congress must make its intent to abrogate such immunity “unmistakably clear in the language of the statute.” see nevada',
3843:'department of human resources v. hibbs, u.s. , 123 s. ct. 1972, 1976 2003; hoffman v. connecticut department of income',
3844:'maintenance, 492 u.s. 96, 101 1989 and cases cited. the necessary unmistakable intent to preempt was supplied by the express',
3845:'language of the statute in hibbs, but such intent was found lacking in hoffman. finally, the court fashioned a “plain',
3846:'statement” rule based on federalism principles in considering whether the federal age discrimination in employment act adea, 29 u.s.c. §§',
3847:'621 et seq., superseded a state constitutional provision for the mandatory retirement of judges at age 70. gregory v. ashcroft,',
3848:'501 u.s. 452 1991. the act’s definition of “employer” included state and local governments;91 however, its definition of “employee” excluded',
3849:'an “appointee at the policymaking level.” the court held that this exclusion covered judges and, therefore, they were not subject',
3850:'to the act. recognizing that the act’s language was at best ambiguous on this point, the court reasoned: “‘[a]ppointee at',
3851:'the policymaking level,’ particularly in the context of the other exceptions that surround it, is an odd way for congress',
3852:'to exclude judges; a plain statement that judges are not ‘employees’ would seem the most efficient 91 the supreme court',
3853:'has since held that the adea does not validly abrogate the states’ sovereign immunity under the eleventh amendment. raygor v.',
3854:'regents of the university of minnesota, 534 u.s. 533 2002; kimel v. florida board of regents, 528 u.s. 62 2000.',
3855:'page 2112 gao04261sp appropriations law—vol. i chapter 2 the legal framework d. presumption against waiver of sovereign immunity phrasing. but',
3856:'in this case we are not looking for a plain statement that judges are excluded. we will not read the',
3857:'adea to cover state judges unless congress has made it clear that judges are included.” 501 u.s. at 467 emphasis',
3858:'in original. there is a strong presumption against waiver of the federal government’s immunity from suit. the courts have repeatedly',
3859:'held that waivers of sovereign immunity must be “unequivocally expressed.” e.g., united states v. nordic village, inc., 503 u.s. 30',
3860:'1992; shoshone indian tribe of the wind river reservation, wyoming v. united states, 51 fed. cl. 60 2001 and cases',
3861:'cited. legislative history does not help for this purpose. the relevant statutory language in nordic village was ambiguous and could',
3862:'have been read, evidently with the support of the legislative history, to impose monetary liability on the united states. the',
3863:'court rejected such a reading, applying instead the same approach as described above in its federalism jurisprudence: “[l]egislative history has',
3864:'no bearing on the ambiguity point. as in the eleventh amendment context, see hoffman, supra, … the ‘unequivocal expression’ of',
3865:'elimination of sovereign immunity that we insist upon is an expression in statutory text. if clarity does not exist there,',
3866:'it cannot be supplied by a committee report.” 503 u.s. at 37. page 2113 gao04261sp appropriations law—vol. i chapter 2',
3867:'the legal framework page 2114 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion a. agency regulations .',
3868:'. . . . . . . . . . . . . . . . . . . .',
3869:'. . . . . . . . . . . . . . 32 1. the administrative procedure act',
3870:'. . . . . . . . . . . . . . . . . . . .',
3871:'. . . . . .33 a. the informal rulemaking process . . . . . . . . .',
3872:'. . . . . . . . . . . . . . .34 b.informal rulemaking: when required .',
3873:'. . . . . . . . . . . . . . . . . . .39 c.',
3874:'additional requirements for rulemaking . . . . . . . . . . . . . . . .',
3875:'. 313 2. regulations may not exceed statutory authority . . . . . . . . . . .',
3876:'. 316 3. “force and effect of law” . . . . . . . . . . . .',
3877:'. . . . . . . . . . . . . . . . . . . .318',
3878:'4. waiver of regulations . . . . . . . . . . . . . . . .',
3879:'. . . . . . . . . . . . . . . . . . .320 5.',
3880:'amendment of regulations . . . . . . . . . . . . . . . . .',
3881:'. . . . . . . . . . . . . .324 6. retroactivity . . . .',
3882:'. . . . . . . . . . . . . . . . . . . .',
3883:'. . . . . . . . . . . . . . . . . . .326 b.',
3884:'agency administrative interpretations . . . . . . . . . . . . . . . 328 1.',
3885:'interpretation of statutes . . . . . . . . . . . . . . . . .',
3886:'. . . . . . . . . . . . . . .328 2. interpretation of agency’s own',
3887:'regulations . . . . . . . . . . . . . . . . 337 c. administrative',
3888:'discretion . . . . . . . . . . . . . . . . . . .',
3889:'. . . . . . . . . 340 1. introduction . . . . . . . .',
3890:'. . . . . . . . . . . . . . . . . . . .',
3891:'. . . . . . . . . . . . . . . .340 2. discretion is not',
3892:'unlimited . . . . . . . . . . . . . . . . . . .',
3893:'. . . . . . . . . . . .342 3. failure or refusal to exercise discretion .',
3894:'. . . . . . . . . . . . . . . . . .345 4. regulations',
3895:'may limit discretion . . . . . . . . . . . . . . . . .',
3896:'. . . . . . . .347 5. insufficient funds . . . . . . . . .',
3897:'. . . . . . . . . . . . . . . . . . . .',
3898:'. . . . . . . . . .349 page 31 gao04261sp appropriations law—vol. i chapter 3 agency regulations',
3899:'and administrative discretion page 32 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion this chapter deals with',
3900:'certain topics in administrative law that, strictly speaking, are not “appropriations law” or “fiscal law.” nevertheless, the material covered is',
3901:'so pervasive in all areas of federal law, appropriations law included, that a brief treatment in this publication is warranted.',
3902:'we caution that it is not our purpose to present an administrative law treatise, but rather to highlight some important',
3903:'“crosscutting” principles that appear in various contexts in many other chapters. the case citations should be viewed as an illustrative',
3904:'sampling. as a conceptual starting point, agency regulations fall into three broad a. agency regulations categories. first, every agency head',
3905:'has the authority, largely inherent but also authorized generally by 5 u.s.c. § 301,1 to issue regulations to govern the',
3906:'internal affairs of the agency. regulations in this category may include such subjects as conflicts of interest, employee travel, and',
3907:'delegations to organizational components. this statute is nothing more than a grant of authority for what are called “housekeeping” regulations.',
3908:'chrysler corp. v. brown, 441 u.s. 281, 309 1979; smith v. cromer, 159 f.3d 875, 878 4th cir. 1998, cert.',
3909:'denied, 528 u.s. 826 1999; nlrb v. capitol fish co., 294 f.2d 868, 875 5th cir. 1961. it confers “administrative',
3910:'power only.” united states v. george, 228 u.s. 14, 20 1913; 54 comp. gen. 624, 626 1975. thus, the statute',
3911:'merely grants agencies authority to issue regulations that govern their own internal affairs; it does not authorize rulemaking that creates',
3912:'substantive legal rights. schism v. united states, 316 f.3d 1259, 1278–1284 fed. cir. 2002, cert. denied, u.s. , 123 s.',
3913:'ct. 2246 2003. second, agencies also have inherent authority to issue procedural rules to govern their internal processes as well',
3914:'as “interpretive” rules that express the agency’s policy positions or views in a way that does not bind outside parties',
3915:'or the agency itself. see richard j. pierce, jr., administrative law treatise § 6.2 at 306 4th ed. 2000, citing',
3916:'skidmore v. swift & co., 323 u.s. 134 1944 and other cases. 1 “the head of an executive department or',
3917:'military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance',
3918:'of its business, and the custody, use, and preservation of its records, papers, and property….” page 32 gao04261sp appropriations law—vol.',
3919:'i chapter 3 agency regulations and administrative discretion the third category consists of socalled “legislative” or “statutory” regulations. regulations in',
3920:'this category, which can only be issued pursuant to a specific statutory grant of authority, create rights and obligations and',
3921:'address other substantive matters in ways that have the force and effect of law. 2 in effect, these regulations constitute',
3922:'the exercise of authority delegated to the agency by law to further “legislate” by fleshing out the underlying statute that',
3923:'the agency is charged with implementing. as discussed in section b of this chapter, the scope and specificity of such',
3924:'a congressional delegation of legislative authority to an agency will often determine how much deference the courts will accord to',
3925:'the agency’s regulations and to the agency’s interpretation of the laws it implements. it is not unusual for congress to',
3926:'grant agencies statutory authority to issue such regulations. when congress enacts a new program statute, it typically does not prescribe',
3927:'every detail of the statute’s implementation but leaves it to the administering agency to “fill in the gaps” by regulation.',
3928:'chevron, inc. v. natural resources defense council, 467 u.s. 837, 843–844 1984; morton v. ruiz, 415 u.s. 199, 231 1974.',
3929:'there are many reasons for this. it is often not possible to foresee in advance every detail that ought to',
3930:'be covered. in other cases, there may be a need for flexibility in implementation that is simply not practical to',
3931:'detail in the legislation. in many cases, congress prefers to legislate a policy in terms of broad standards, leaving the',
3932:'details of implementation to the agency with program expertise. finally, it is much easier for an agency to amend a',
3933:'regulation to reflect changing circumstances than it would be for congress to have to go back and amend the basic',
3934:'legislation. thus, agency legislative regulations have become an increasingly vital element of federal law. 1. the administrative the key statute',
3935:'governing the issuance of agency regulations is the administrative procedure act apa, originally enacted in 1946 and now procedure act',
3936:'codified in title 5 of the united states code, primarily sections 551–559 2 legislative or statutory regulations of this type',
3937:'have traditionally been called “statutory regulations,” as distinguished from “administrative regulations,” such as those issued under 5 u.s.c. § 301.',
3938:'e.g., 21 comp. dec. 482 1915. while the legislative/statutory versus administrative terminology may be convenient shorthand in some contexts, its',
3939:'significance has been largely superseded by the administrative procedure act. page 33 gao04261sp appropriations law—vol. i chapter 3 agency regulations',
3940:'and administrative discretion a. the informal rulemaking process administrative procedure and 701–706 judicial review.3 the apa deals with two broad',
3941:'categories of administrative action: rulemaking and adjudication. our concern here is solely with the rulemaking portions. the apa uses the',
3942:'term “rule” rather than “regulation.” in the context of the apa, the issuance of a regulation is called “rulemaking.” the',
3943:'term “rule” is given a very broad definition in 5 u.s.c. § 5514: “ ‘[r]ule’ means the whole or a',
3944:'part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law',
3945:'or policy or describing the organization, procedure, or practice requirements of an agency ….” it is apparent from this definition',
3946:'that a great many agency issuances, regardless of what the agency chooses to call them, are rules. the apa prescribes',
3947:'two types of rulemaking, which have come to be known as “formal” and “informal.” formal rulemaking under the apa involves',
3948:'a trialtype hearing witnesses, depositions, transcript, etc. and is governed by 5 u.s.c. §§ 556 and 557. this more rigorous,',
3949:'and today relatively uncommon, procedure is required only where the governing statute requires that the proceeding be “on the record.”',
3950:'5 u.s.c. § 553c; united states v. florida east coast railway co., 410 u.s. 224 1973. most agency regulations are',
3951:'the product of informal rulemaking—the notice and comment procedures prescribed by 5 u.s.c. § 553. the first step in this',
3952:'process is the publication of a proposed regulation in the federal register. the federal register is a daily publication printed',
3953:'and distributed by the government printing office. 44 u.s.c. § 1504.4 publication of a document in the federal register constitutes',
3954:'legal notice of its contents. 44 u.s.c. 3 for an excellent summary of the apa, together with a useful bibliography,',
3955:'see federal administrative procedure sourcebook 3rd ed. 2000, published by the american bar association’s section on administrative law and regulatory',
3956:'practice. the sourcebook is particularly useful because it reprints in full the 1947 attorney general’s manual on the administrative procedure',
3957:'act, which has been called the government’s “most authoritative interpretation of the apa.” bowen v. georgetown university hospital, 488 u.s.',
3958:'204, 218 1988 justice scalia, concurring. 4 indispensable though it may be, the federal register has been termed “voluminous and',
3959:'dull.” federal crop insurance corp. v. merrill, 332 u.s. 380, 387 1947 justice jackson, dissenting. page 34 gao04261sp appropriations law—vol.',
3960:'i chapter 3 agency regulations and administrative discretion § 1507; federal crop insurance corp. v. merrill, 332 u.s. 380 1947;',
3961:'63 comp. gen. 293 1984; b242329.2, mar. 12, 1991.5 the agency then allows a period of time during which interested',
3962:'parties may participate in the process, usually by submitting written comments, although oral presentations are sometimes permitted. next, the agency',
3963:'considers and evaluates the comments submitted, and determines the content of the final regulation, which is also published in the',
3964:'federal register, generally at least 30 days prior to its effective date. 5 u.s.c. §§ 553b–d. the agency is also',
3965:'required to publish a “concise general statement” of the basis and purpose of the regulation. 5 u.s.c. § 553c. this',
3966:'is commonly known as the preamble, the substance of which appears in the federal register under the heading “supplementary information.”',
3967:'the preamble is extremely important since it is the primary means for a reviewing court to evaluate compliance with section',
3968:'553. the courts have cautioned not to read the terms “concise” and “general” too literally. automotive parts & accessories ass’n',
3969:'v. boyd, 407 f.2d 330, 338 d.c. cir. 1968. rather, the preamble must be adequate— “to respond in a reasoned',
3970:'manner to the comments received, to explain how the agency resolved any significant problems raised by the comments, and to',
3971:'show how that resolution led the agency to the ultimate rule.” rodway v. department of agriculture, 514 f.2d 809, 817',
3972:'d.c. cir. 1975. see also home box office, inc. v. fcc, 567 f.2d 9, 36 d.c. cir., cert. denied, 434',
3973:'u.s. 829 1977; automotive parts, 407 f.2d at 338. as one court stated, “the agencies do not have quite the',
3974:'prerogative of obscurantism reserved to the legislatures.” united states v. nova scotia food products corp., 568 f.2d 240, 252 2nd',
3975:'cir. 1977. the preamble does not have to address every item included in the comments. id. ; automotive parts, 407',
3976:'f.2d at 338. however, professor pierce cautions that, over time, the courts have come to focus increasing scrutiny on the',
3977:'preamble as the venue for agencies to demonstrate that their regulations are not “arbitrary and capricious”: 5 internet notice is',
3978:'not an acceptable substitute for publication in the federal register. utility solid waste activities group v. epa, 236 f.3d 749,',
3979:'763 d.c. cir. 2001. page 35 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion “no court today',
3980:'would uphold a major agency rule that incorporates only a ‘concise and general statement of basis and purpose.’ to have',
3981:'any reasonable prospect of obtaining judicial affirmance of a major rule, an agency must set forth the basis and purpose',
3982:'of the rule in a detailed statement, often several hundred pages long, in which the agency refers to the evidentiary',
3983:'basis for all factual predicates, explains its method of reasoning from factual predicates to the expected effects of the rule,',
3984:'relates the factual predicates and expected effects of the rule to each of the statutory goals or purposes the agency',
3985:'is required to further or to consider, responds to all major criticisms contained in the comments on its proposed rule,',
3986:'and explains why it has rejected at least some of the most plausible alternatives to the rule it has adopted.',
3987:'failure to fulfill one of these judicially prescribed requirements of a ‘concise general statement of basis and purpose’ has become',
3988:'the most frequent basis for reversal of agency rules.” richard j. pierce, jr.,administrative law treatise, § 7.4 at 442 4th',
3989:'ed. 2000 citations omitted. as discussed later in this section, congress and the president also have increasingly imposed requirements governing',
3990:'the development of agency regulations that must be addressed in the preamble. the preamble normally accompanies publication of the final',
3991:'regulation, although this is not required as long as it is sufficiently close in time to make clear that it',
3992:'is in fact contemporaneous and not a “post hoc rationalization.” action on smoking & health v. civil aeronautics board, 713',
3993:'f.2d 795, 799 d.c. cir. 1983; tabor v. joint board for enrollment of actuaries, 566 f.2d 705, 711 n. 14',
3994:'d.c. cir. 1977. apart from questions of judicial review, the preamble serves another highly important function. it provides, as its',
3995:'title in the federal register indicates, useful supplementary information. viewed from this perspective, page 36 gao04261sp appropriations law—vol. i chapter',
3996:'3 agency regulations and administrative discretion the preamble serves much the same purpose with respect to a regulation as legislative',
3997:'history does with respect to a statute.6 codifications of agency regulations are issued in bound and permanent form in the',
3998:'code of federal regulations. the “c.f.r.” is supplemented or republished at least once a year. 44 u.s.c. § 1510. unfortunately,',
3999:'with rare exceptions, the preamble does not accompany the regulations into the c.f.r., but is found only in the original',
4000:'federal register issuance. the c.f.r. does, however, give the appropriate federal register citation. regulations on the use of the federal',
4001:'register and the c.f.r. are found in 1 c.f.r. ch. i. agencies may supplement the apa procedures, but are not',
4002:'required to unless directed by statute. the supreme court has admonished that a court should: “not stray beyond the judicial',
4003:'province to explore the procedural format or to impose upon the agency its own notion of which procedures are ‘best’',
4004:'or most likely to further some vague, undefined public good.” vermont yankee nuclear power corp. v. natural resources defense council,',
4005:'inc., 435 u.s. 519, 549 1978. the court repeated its caution the following year in chrysler corp. v. brown, 441',
4006:'u.s. 281, 312–13 1979. the court of appeals for the district of columbia circuit, in home box office, inc. v.',
4007:'fcc, provided the following summary of the apa’s informal rulemaking requirements: “the apa sets out three procedural requirements: notice of',
4008:'the proposed rulemaking, an opportunity for interested persons to comment, and ‘a concise general statement of the basis and purpose’',
4009:'of the rules ultimately adopted…. as interpreted by recent decisions of this court, these procedural requirements are intended to assist',
4010:'judicial review as well as to provide fair treatment for persons affected by a rule…. to this end there must',
4011:'be an exchange 6 the “legislative history” analogy may be extended to unpublished agency documents used in the preparation of',
4012:'a regulation, which may be relevant in resolving ambiguities in the regulation. see deluxe check printers, inc. v. united states,',
4013:'5 cl. ct. 498, 500–01 1984. page 37 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion of',
4014:'views, information and criticism between interested persons and the agency…. consequently, the notice required by the apa, or information subsequently',
4015:'supplied to the public, must disclose in detail the thinking that has animated the form of a proposed rule and',
4016:'the data upon which that rule is based…. moreover, a dialogue is a two way street: the opportunity to comment',
4017:'is meaningless unless the agency responds to significant points raised by the public….” 567 f.2d at 35–36 emphasis added. in',
4018:'the negotiated rulemaking act of 1990, pub. l. no. 101648, 104 stat. 4969 nov. 29, 1990, codified at 5 u.s.c.',
4019:'§§ 561–570a, congress enacted a framework for agencies to consult with interested parties in the development of regulations.7 under this',
4020:'legislation, a proposed regulation is drafted by a committee composed of representatives of the agency and other interested parties. an',
4021:'agency may use this procedure if it determines, among other things, that there are a limited number of identifiable interests',
4022:'that will be significantly affected by the regulation, and that there is a reasonable likelihood that a committee can reach',
4023:'a consensus without unreasonably delaying the rulemaking process. once the proposed regulation is developed in this manner, it remains subject',
4024:'to the apa’s notice and comment requirements. the negotiated rulemaking procedure is optional; an agency’s decision to use or not',
4025:'use it is not subject to judicial review. furthermore, use of the procedure does not entitle the regulation to any',
4026:'greater deference than it would otherwise receive. 5 u.s.c. § 570; see also center for law & education v. united',
4027:'states department of education, 209 f. supp. 2d 102, 106–107 d.d.c. 2002. whatever form they take, consultations with interested parties',
4028:'in the development of regulations cannot undercut the notice and comment procedures of the apa. the comptroller general has found',
4029:'that an agreement to issue, with specified content, a regulation otherwise subject to the apa not only violates the apa',
4030:'but is invalid as contrary to public 7 congress originally provided, in section 5 of public law 101648, for the',
4031:'negotiated rulemaking act to expire 6 years after its date of enactment. however, the administrative dispute resolution act of 1996,',
4032:'pub. l. no. 104320, § 11, 110 stat. 3870, 3873–3874 oct. 19, 1996, repealed section 5 and made the act',
4033:'permanent. public law 104320 also required the president to designate an agency or interagency committee to encourage and facilitate negotiated',
4034:'rulemaking. page 38 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion b. informal rulemaking: when required policy.',
4035:'b212529, may 31, 1984. in effect, a promise to issue a regulation with specified content amounts to a promise to',
4036:'disregard any adverse public comments received, clearly a violation of the apa. likewise, in usa group loan services, inc. v.',
4037:'riley, 82 f.3d 708, 714 7th cir. 1996, the court held that agreements reached between interested parties and agency officials',
4038:'through consultations pursuant to the negotiated rulemaking act are not legally binding, since to enforce them would “extinguish notice and',
4039:'comment rulemaking.” a great many things are required by one statute or another to be published in the federal register.',
4040:'one example is “substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations',
4041:'of general applicability formulated and adopted by the agency.” 5 u.s.c. § 552a1d. privacy act notices are another example. 5',
4042:'u.s.c. § 552ae4. other items required or authorized to be published in the federal register are specified in 44 u.s.c.',
4043:'§ 1505. however, the mere requirement to publish something in the federal register is not, by itself, a requirement to',
4044:'use apa procedures. as a starting point, anything that falls within the definition of a “rule” in 5 u.s.c. §',
4045:'5514 and for which formal rulemaking is not required, is subject to the informal rulemaking procedures of 5 u.s.c. §',
4046:'553 unless exempt. this statement is not as encompassing as it may seem, since section 553 itself provides several very',
4047:'significant exemptions. these exemptions, according to a line of decisions by the u.s. court of appeals for the district of',
4048:'columbia circuit, will be “narrowly construed and only reluctantly countenanced.” utility solid waste activities group v. epa, 236 f.3d 749,',
4049:'754 d.c. cir. 2001; asiana airlines v. federal aviation administration, 134 f.3d 393, 396–397 d.c. cir. 1998; tennessee gas pipeline',
4050:'co. v. federal energy regulatory commission, 969 f.2d 1141, 1144 d.c. cir. 1992; new jersey department of environmental protection v.',
4051:'epa, 626 f.2d 1038, 1045 d.c. cir. 1980.8 be that as it may, they appear in the statute and cannot',
4052:'be disregarded. for example, section 553 does not apply to matters “relating to agency management or 8 in utility solid',
4053:'waste activities group, the court held that the “good cause” exemption in section 553b does not allow an agency to',
4054:'forego notice and comment when correcting a technical error in a regulation. 236 f.3d at 754–55. likewise, the court held',
4055:'that agencies have no “inherent power” to correct such technical errors outside of the apa procedures. id. at 752–54. page',
4056:'39 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion personnel or to public property, loans, grants, benefits,',
4057:'or contracts.” 5 u.s.c. § 553a2. several agencies have published in the federal register a statement committing themselves to follow',
4058:'apa procedures with respect to matters that would otherwise be exempt from apa rulemaking. to the extent an agency has',
4059:'done this, it has voluntarily waived the benefit of the exemption and must follow the apa. e.g., flagstaff medical center,',
4060:'inc. v. sullivan, 962 f.2d 879, 886 9th cir. 1992; alcaraz v. block, 746 f.2d 593 9th cir. 1984; humana',
4061:'of south carolina, inc. v. califano, 590 f.2d 1070 d.c. cir. 1978; rodway v. department of agriculture, 514 f.2d 809',
4062:'d.c. cir. 1975; abbs v. sullivan, 756 f. supp. 1172, 1188 w.d. wis. 1990; herron v. heckler, 576 f. supp.',
4063:'218 n.d. cal. 1983; ngou v. schweiker, 535 f. supp. 1214 d. d.c. 1982; b202568, sept. 11, 1981.9 if an',
4064:'agency has not waived its exemption with respect to the specified matters, it need not follow the apa. california v.',
4065:'epa, 689 f.2d 217 d.c. cir. 1982; city of grand rapids v. richardson, 429 f. supp. 1087 w.d. mich. 1977.10',
4066:'another significant exemption, found in 5 u.s.c. § 553b, is for “interpretative rules, general statements of policy, or rules of',
4067:'agency organization, procedure, or practice.” again, much litigation has ensued over whether a given regulation is “substantive” or “legislative,” in',
4068:'which event section 553 applies, or whether it is “interpretative,” in which event it does not. see, e.g., anr pipeline',
4069:'co. v. federal energy regulatory commission, 205 f.3d 403 d.c. cir. 2000; caruso v. blockbustersony music entertainment centre at the',
4070:'waterfront, 193 f.3d 730 3rd cir. 1999; paralyzed veterans of america v. district of columbia arena l.p., 117 f.3d 579',
4071:'d.c. cir. 1997, cert. denied, 523 u.s. 1003 1998; hoctor v. department of agriculture, 82 f.3d 165 7th cir. 1996;',
4072:'health 9 an agency does not, however, waive the benefit of apa exemptions simply by following an informal practice of',
4073:'voluntarily issuing otherwise exempt regulations through apa notice and comment procedures. such a practice does not estop the agency from',
4074:'later invoking the exemption. see, e.g., malekmarzban v. immigration & naturalization service, 653 f.2d 113 4th cir. 1981, discussed in',
4075:'section a.5 of this chapter. 10 the exemption may be unavailable to particular agencies or programs, in whole or in',
4076:'part, by virtue of some other statute. for example, congress has required the department of energy to follow the apa',
4077:'with respect to public property, loans, grants, or contracts, although the department of energy may waive notice and comment upon',
4078:'finding that strict compliance is likely to cause serious harm to the public health, safety, or welfare. 42 u.s.c. §§',
4079:'7191b3, e. page 310 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion insurance association of america, inc.',
4080:'v. shalala, 23 f.3d 412 d.c. cir. 1994, cert. denied, 513 u.s. 1147 1995; american mining congress v. mine safety',
4081:'& health administration, 995 f.2d 1106 d.c. cir. 1993. the agency’s own characterization of a regulation is the “starting point”',
4082:'for the analysis. professionals & patients for customized care v. shalala, 56 f.3d 592, 596 5th cir. 1995; metropolitan school',
4083:'district of wayne township, marion county, indiana v. davila, 969 f.2d 485, 489 7th cir. 1992, cert. denied, 507 u.s.',
4084:'949 1993. however, the agency’s characterization, while relevant, is not controlling. e.g., davila; general motors corp. v. ruckelshaus, 742 f.2d',
4085:'1561 d.c. cir. 1984, cert. denied, 471 u.s. 1074 1985; american frozen food institute, inc. v. united states, 855 f.',
4086:'supp. 388, 396 c.i.t. 1994 “the court must focus on the intended legal effect of the rule adopted, not the',
4087:'stated intent of the agency, to determine whether a rule is legislative or interpretive.”. the case law is not entirely',
4088:'consistent in the criteria used to determine whether a regulation is legislative or interpretive. professor pierce points to the district',
4089:'of columbia circuit’s decision in american mining congress, cited above, as an exemplary opinion that has been followed in several',
4090:'other circuits. based largely on american mining congress, he recommends a test consisting of the following four questions: “1 whether',
4091:'in the absence of the rule there would not be an adequate legislative basis for enforcement action or other agency',
4092:'action to confer benefits or ensure the performance of duties; 2 whether the legislative rule the agency is claiming to',
4093:'interpret is too vague or openended to support the interpretative rule; 3 whether the agency had explicitly invoked its legislative',
4094:'authority; or 4 whether the rule effectively amends a prior legislative rule.” page 311 gao04261sp appropriations law—vol. i chapter 3',
4095:'agency regulations and administrative discretion if the answer to any of these questions is yes, the rule is legislative rather',
4096:'than interpretative. richard j. pierce, administrative law treatise, § 6.4 at 345 4th ed. 2000.11 while contests over the applicability',
4097:'of 5 u.s.c. § 553 frequently center on whether a regulation is legislative or interpretive, they can arise in many',
4098:'other contexts as well. agency issuances may be called many things besides regulations: manuals, handbooks, instruction memoranda, etc. for purposes',
4099:'of determining applicability of the apa, the test is the substance and effect of the document rather than what the',
4100:'agency chooses to call it. e.g., guardian federal savings & loan ass’n v. federal savings & loan insurance corp., 589',
4101:'f.2d 658, 666 d.c. cir. 1978; herron v. heckler, 576 f. supp. at 230; saint francis memorial hospital v. weinberger,',
4102:'413 f. supp. 323, 327 n.d. cal. 1976. as we will discuss later in this section and in section b',
4103:'of this chapter, a functional analysis of the nature of these varied agency issuances not only dictates whether apa rulemaking',
4104:'procedures apply to them, but also determines their legal effects on the agency and outside parties as well as the',
4105:'extent to which courts will defer to any statutory interpretations that they embody. a regulation that is subject to 5',
4106:'u.s.c. § 553, but which is issued in violation of the required procedures including a nonexistent or inadequate preamble, stands',
4107:'an excellent chance of being invalidated. if so, the court may simply declare the regulation invalid, or “void.” e.g., chemical',
4108:'manufacturers ass’n v. epa, 28 f.3d 1259 d.c. cir. 1994; w.c. v. bowen, 807 f.2d 1502 9th cir. 1987; national',
4109:'nutritional foods ass’n v. mathews, 557 f.2d 325, 338 2nd cir. 1977. in the alternative, the court may “vacate” the',
4110:'regulation and remand it to the agency for further proceedings in compliance with the apa, the extent of the further',
4111:'proceedings depending on the degree of noncompliance. e.g., tabor v. joint board for enrollment of actuaries, 566 f.2d 705, 712',
4112:'d.c. cir. 1977; rodway v. department of agriculture, 514 f.2d 809, 817 d.c. cir. 1975; detroit edison co. v. epa,',
4113:'496 f.2d 244, 249 6th cir. 1974. 11 originally, judge stephen f. williams, author of the american mining congress opinion,',
4114:'had included as an additional factor whether the rule was published in the c.f.r. however, professor pierce notes that judge',
4115:'williams greatly downplayed this factor in a subsequent opinion, noting that publication in the c.f.r. provides only a “snippet of',
4116:'evidence” that a rule is legislative. see health insurance association of america, inc., 23 f.3d at 423. professor pierce likewise',
4117:'discounts this factor since many interpretative rules are published in the c.f.r. pierce, administrative law treatise, § 6.4 at 344–345.',
4118:'page 312 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion c. additional requirements for rulemaking increasingly, however,',
4119:'courts decline to vacate defective regulations on remand if they conclude that the agency can fairly readily correct the deficiency',
4120:'or if other considerations militate against nullifying the regulation. e.g., idaho farm bureau federation v. babbitt, 58 f.3d 1392 9th',
4121:'cir. 1995; american medical ass’n v. reno, 57 f.3d 1129 d.c. cir. 1995; allied signal, inc. v. united states nuclear',
4122:'regulatory commission, 988 f.2d 146 d.c. cir. 1993; independent united states tanker owners committee v. dole, 809 f.2d 847 d.c.',
4123:'cir., cert. denied, 484 u.s. 819 1987.12 finally, a court may sever the invalid portions of a regulation on remand',
4124:'and leave intact the portions of the regulation that are not affected by the reversal. e.g., davis county solid waste',
4125:'management v. epa, 108 f.3d 1454 d.c. cir. 1997. within the context of apa rulemaking, congress and the president have',
4126:'imposed a series of requirements that, in effect, regulate the regulators. for the most part, these requirements do not limit',
4127:'or otherwise affect the application of the apa.13 rather, they seek primarily to ensure that certain consequences of agency regulations—such',
4128:'as costs, benefits, and other impacts—are fully considered and explained as part of the normal apa rulemaking process. the following',
4129:'are examples of some of these statutory requirements: the national environmental policy act, 42 u.s.c. §§ 4321 et seq., requires',
4130:'agencies to prepare an environmental impact statement for “major federal actions [including regulations] significantly affecting the quality of the human',
4131:'environment . . .” the paperwork reduction act, 44 u.s.c. §§ 3501 et seq., generally requires agencies to provide 60',
4132:'days advance notice and obtain 12 three recent cases illustrate the considerations courts apply in deciding what remedy is appropriate',
4133:'in the case of regulations found to be defective: american bioscience, inc. v. thompson, 269 f.3d 1077, 1086 d.c. cir.',
4134:'2001 rule vacated; national organization of veterans’ advocates, inc. v. secretary of veterans affairs, 260 f.3d 1365, 1380–81 fed. cir.',
4135:'2001 rule not vacated; fox television stations, inc. v. fcc, 280 f.3d 1027, 1047–53 d.c. cir. 2002 one rule before',
4136:'the court vacated; another not vacated. 13 there are, however, a number of socalled “hybrid rulemaking” statutes that do directly',
4137:'affect the apa by imposing additional or different substantive or procedural requirements for certain regulations. some of these statutes are',
4138:'listed in pierce, administrative law treatise § 7.7 at 486. they include the occupational safety and health act, the consumer',
4139:'product safety act, and the toxic substances control act of 1977. page 313 gao04261sp appropriations law—vol. i chapter 3 agency',
4140:'regulations and administrative discretion approval from the office of management and budget’s office of information and regulatory affairs for regulations',
4141:'that involve the collection of information including recordkeeping requirements from 10 or more nonfederal persons. the act requires the agency',
4142:'to demonstrate that the collection of information is needed for performance of the agency’s functions and is not unnecessarily duplicative',
4143:'or burdensome. the regulatory flexibility act, 5 u.s.c. §§ 601–612, requires agencies to conduct a “regulatory flexibility analysis” of proposed',
4144:'regulations that would have a significant economic impact on a substantial number of “small entities,” for example, small businesses. the',
4145:'analysis must consider, among other things, alternative ways of accomplishing the objective of the regulation in a way that would',
4146:'minimize its impact on small entities.14 title ii of the unfunded mandates reform act, 2 u.s.c. §§ 1531–1538, generally requires',
4147:'agencies to prepare a written assessment of the impact of a regulation containing a federal mandate that may impose costs',
4148:'in excess of $100 million per year on state, local, or tribal governments, or on the private sector. the socalled',
4149:'“congressional review act” cra, 5 u.s.c. §§ 801–808, requires agencies to submit a report on each final rule to congress',
4150:'and to the comptroller general before the rule takes effect.15 the report is to include: a copy of the rule;',
4151:'a copy of any costbenefit analysis of the rule; an explanation of any actions the agency has taken with respect',
4152:'to the regulatory flexibility act and the unfunded mandates reform act, discussed above; and any actions the agency has taken',
4153:'with respect to other relevant statutes or relevant executive orders some of which are mentioned hereafter. the act defines “major',
4154:'rules” as, among other things, those having an annual economic impact of $100 million or 14 the act, originally enacted',
4155:'in 1980, was amended in 1996 to make certain agency actions subject to judicial review. see 5 u.s.c. § 611.',
4156:'15 the cra, 5 u.s.c. § 8043, generally applies the broad apa definition of rule in 5 u.s.c. § 551,',
4157:'and, therefore, is not limited to regulations that are subject to rulemaking under the apa. however, the cra definition has',
4158:'its own exceptions, which are similar to some of the exemptions from rulemaking under the apa. for illustrative opinions on',
4159:'what agency issuances are or are not “rules” covered by the cra, see b292045, may 19, 2003, and b281575, jan.',
4160:'20, 1999. the cra also exempts from its coverage federal reserve system rules concerning monetary policy. 5 u.s.c. § 807.',
4161:'page 314 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion more. 5 u.s.c. § 8042. in the',
4162:'case of major rules, the agency generally must delay the effective date of the rule for 60 days pending congressional',
4163:'review. the comptroller general must report to congress on the agency’s compliance with applicable procedural requirements with respect to each',
4164:'major rule. the cra further provides expedited procedures whereby congress may reject a rule submitted to it by enactment of',
4165:'a joint resolution of disapproval.16 like congress, presidents have also imposed additional requirements governing various aspects of the rulemaking process,',
4166:'primarily by the use of executive orders. the following list is illustrative but by no means exhaustive:17 executive order no.',
4167:'12630 “governmental actions and interference with constitutionally protected property rights” prescribes policies and procedures to ensure that actions potentially impacting',
4168:'property rights in a manner requiring compensation under the fifth amendment are undertaken on a wellreasoned basis. 53 fed. reg.',
4169:'8859 mar. 15, 1988, 5 u.s.c. § 601 note. executive order no. 12866 “regulatory planning and review” establishes a number',
4170:'of procedural and analytical requirements governing agency rulemaking, including review of certain rules by the office of management and budget’s',
4171:'office of information and regulatory affairs. 58 fed. reg. 51735 sept. 30, 1993, as amended by exec. order no. 13258,',
4172:'67 fed. reg. 9385 feb. 28, 2002, 5 u.s.c. § 601 note. executive order no. 12988 “civil justice reform” promotes',
4173:'clear drafting of rules with respect to a number of legal issues in order to avoid burdening the courts with',
4174:'litigation over unnecessary ambiguities. for example, section 3b2 of the order requires that rules specify in clear language what, if',
4175:'any, preemptive and retroactive 16 the cra’s joint resolution disapproval mechanism, which requires either the president’s signature or enactment over',
4176:'a presidential veto, has been used only once—to nullify, early in the george w. bush administration, an ergonomics regulation that',
4177:'was promulgated during the waning days of the clinton administration. see pub. l. no. 1075, 115 stat. 7 mar. 20,',
4178:'2001. 17 this list includes several executive orders currently in effect that apply to broad categories of agency regulations. other',
4179:'executive orders and statutes govern regulations in more discrete subject areas. page 315 gao04261sp appropriations law—vol. i chapter 3 agency',
4180:'regulations and administrative discretion effects the rules should be given. it also requires that rules provide a clear legal standard',
4181:'of conduct for affected parties. 61 fed. reg. 4729 feb. 7, 1996, 28 u.s.c. § 519 note. executive order no.',
4182:'13132 “federalism” sets policies and procedural requirements for regulations and other agency actions that have significant implications in relation to',
4183:'state and local governments. 64 fed. reg. 43255 aug. 10, 1999, 5 u.s.c. § 601 note. executive order no. 13272',
4184:'“proper consideration of small entities in agency rulemaking” establishes policies and procedures to facilitate compliance with the regulatory flexibility act,',
4185:'discussed above. 67 fed. reg. 53461 aug. 16, 2002, 5 u.s.c. § 601 note. 2. regulations may not exceed statutory',
4186:'authority it is a fundamental proposition that agency regulations are bound by the limits of the agency’s statutory and organic',
4187:'authority. an often quoted statement of the principle appears in the supreme court’s decision in manhattan general equipment co. v.',
4188:'commissioner of internal revenue, 297 u.s. 129, 134 1936: “the power of an administrative officer or board to administer a',
4189:'federal statute and to prescribe rules and regulations to that end is not the power to make law—for no such',
4190:'power can be delegated by congress—but the power to adopt regulations to carry into effect the will of congress as',
4191:'expressed by the statute. a regulation which does not do this, but operates to create a rule out of harmony',
4192:'with the statute, is a mere nullity.” this truism is reflected in a host of subsequent judicial and administrative decisions.',
4193:'e.g., health insurance ass’n of america, inc. v. shalala, 23 f.3d 412, 416 d.c. cir. 1994; killip v. office of',
4194:'personnel management, 991 f.2d 1564, 1569 fed. cir. 1993, and cases cited. thus, as the killip court put it: “though',
4195:'an agency may promulgate rules or regulations pursuant to authority granted by congress, no such rule or page 316 gao04261sp',
4196:'appropriations law—vol. i chapter 3 agency regulations and administrative discretion regulation can confer on the agency any greater authority than',
4197:'that conferred under the governing statute.”18 to take an example of particular relevance to this publication, an agency may not',
4198:'expend public funds or incur a liability to do so based on a regulation, unless the regulation is implementing authority',
4199:'given to the agency by law. a regulation purporting to create a liability on the part of the government not',
4200:'supported by statutory authority is invalid and not binding on the government. atchison, topeka & santa fe railroad co. v.',
4201:'united states, 55 ct. cl. 339 1920; hollandamerica line v. united states, 53 ct. cl. 522 1918, rev’d on other',
4202:'grounds, 254 u.s. 148 1920; illinois central railroad co. v. united states, 52 ct. cl. 53 1917. see also b201054,',
4203:'apr. 27, 1981, discussed below. in other words, the authority to obligate or expend public funds cannot be created by',
4204:'regulation; congress must confer that basic authority. see also harris v. lynn, 555 f.2d 1357 8th cir., cert. denied, 434',
4205:'u.s. 927 1977 agency cannot extend benefits by regulation to a class of persons not included within the authorizing statute;',
4206:'tullock v. state highway commission of missouri, 507 f.2d 712, 716–17 8th cir. 1974; pender peanut corp. v. united states,',
4207:'20 cl. ct. 447, 455 1990 monetary penalty not authorized by statute cannot be imposed by regulation. further illustrations may',
4208:'be found in the following decisions of the comptroller general: where the program statute provided that federal grants “shall be”',
4209:'a specified percentage of project construction costs, the grantor agency could not issue regulations providing a mechanism for reducing the',
4210:'grants below the specified percentage. 53 comp. gen. 547 1974. where a statute provided that administrative costs could not exceed',
4211:'a specified percentage of funds distributed to states under an allotment 18 obviously, this principle applies as well to agency',
4212:'issuances that do not even rise to the level of legislative regulations. if agency inhouse publications are inconsistent with “governing',
4213:'statutes and regulations of the highest or higher dignity, e.g., regulations published in the federal register, they do not bind',
4214:'the government, and persons relying on them do so at their peril.” fiorentino v. united states, 607 f.2d 963, 968',
4215:'ct. cl. 1979, cert. denied, 444 u.s. 1083 1980. it is equally obvious that publishing an agency manual in accordance',
4216:'with the requirements of the apa cannot enhance the agency’s status so as to permit it to create substantive rights',
4217:'in violation of a statute. hamlet v. united states, 63 f.3d 1097, 1104–05 fed. cir. 1995, cert. denied, 517 u.s.',
4218:'1155 1996. page 317 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion formula, the administering agency could',
4219:'not amend its regulations to relieve states of liability for over expenditures or to raise the ceiling. b178564, july 19,',
4220:'1977, aff’d 57 comp. gen. 163 1977. absent a clear statutory basis, an agency may not issue regulations establishing procedures',
4221:'to accept government liability or to forgive indebtedness based on what it deems to be fair or equitable. b201054, supra.',
4222:'see also b118653, july 15, 1969. see also b288266, jan. 27, 2003 agencies should not incur obligations for food and',
4223:'light refreshments in reliance on a general services administration gsa travel regulation for which gsa has no authority; 62 comp.',
4224:'gen. 116 1983; 56 comp. gen. 943 1977; b201706, mar. 17, 1981. 3. “force and effect of law” a very',
4225:'long line of decisions holds that legislative or statutory regulations that are otherwise valid i.e., within the bounds of the',
4226:'agency’s statutory authority have the force and effect of law. e.g., 53 comp. gen. 364 1973; 43 comp. gen. 31',
4227:'1963; 37 comp. gen. 820 1958; 33 comp. gen. 174 1953; 31 comp. gen. 193 1951; 22 comp. gen. 895',
4228:'1943; 15 comp. gen. 869 1936; 2 comp. gen. 342 1922; 21 comp. dec. 482 1915; b248439 et al., oct.',
4229:'22, 1992. the thrust of these decisions is that the regulations are binding on all concerned, the issuing agency included,',
4230:'and that the agency cannot waive their application on an ad hoc or situational basis. in chrysler corp. v. brown,',
4231:'441 u.s. 281 1979, the supreme court provided detailed instruction as to when an agency regulation is entitled to the',
4232:'force and effect of law. the regulation “must have certain substantive characteristics and be the product of certain procedural requisites.”',
4233:'441 u.s. at 301. specifically, the court listed three tests that must be met: page 318 gao04261sp appropriations law—vol. i',
4234:'chapter 3 agency regulations and administrative discretion the regulation must be a substantive or legislative regulation affecting individual rights or',
4235:'obligations. regulations that are interpretative only generally will not qualify.19 the regulation must be issued pursuant to, and subject to',
4236:'any limitations of, a statutory grant of authority. for purposes of this test, 5 u.s.c. § 301 does not constitute',
4237:'a sufficient grant of authority. 441 u.s. at 309–11. the regulation must be issued in compliance with any procedural requirements',
4238:'imposed by congress. this generally means the apa, unless the regulation falls within one of the exemptions previously discussed.20 a',
4239:'regulation that meets these three tests will be given the force and effect of law. a regulation with the force',
4240:'and effect of law is “binding on courts in a manner akin to statutes” chrysler corp., 441 u.s. at 308;',
4241:'it has the same legal effect “as if [it] had been enacted by congress directly” federal crop insurance corp. v.',
4242:'merrill, 332 u.s. 380, 385 1947; it “is as binding on a court as if it were part of the',
4243:'statute” joseph v. united states civil service commission, 554 f.2d at 1153; it is “as binding on the courts as',
4244:'any statute enacted by congress” production tool corp. v. employment & training administration, 688 f.2d at 1165. see also stinson',
4245:'v. united states, 508 u.s. 36, 40–42 1993. this is strong language. it cautions a reviewing court or reviewing administrative',
4246:'agency not to substitute its own judgment for that of the 19 this of course is the same distinction discussed',
4247:'earlier with respect to the applicability of informal rulemaking procedures under the administrative procedure act apa. it has been pointed',
4248:'out that the term “legislative” is preferable to “substantive” because the latter can become confused with another distinction occasionally encountered,',
4249:'substantive versus procedural, which has little value in the present context. a legislative rule may be procedural, and an interpretative',
4250:'rule may be substantive in the sense that it does not deal with an issue of procedure. see joseph v.',
4251:'united states civil service commission, 554 f.2d 1140, 1153 n.24 d.c. cir. 1977. whichever term is used, the terminology can',
4252:'be misleading, as pointed out in production tool corp. v. employment & training administration, 688 f.2d 1161, 1166 7th cir.',
4253:'1982. indeed, any attempt to force fit the wide range of agency issuances into neat categories by using such labels',
4254:'appears problematic. see generally richard j. pierce, jr., administrative law treatise § 6.1 “what is a rule” 4th ed. 2000.',
4255:'20 see, for example, b226499, apr. 1, 1987, holding that an unpublished notice purporting to amend a published regulation did',
4256:'not have the force and effect of law. page 319 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative',
4257:'discretion agency, and not to invalidate a regulation merely because it would have interpreted the law differently. a regulation with',
4258:'the force and effect of law is controlling, subject to the “arbitrary and capricious” standard of the apa 5 u.s.c.',
4259:'§ 706. batterton v. francis, 432 u.s. 416, 425–26 1977; georgia pacific corp. v. occupational safety & health administration, 25',
4260:'f.3d 999, 1003–1004 11th cir. 1994; metropolitan school district of wayne township, marion county, indiana v. davila, 969 f.2d 485,',
4261:'490 7th cir. 1992; guardian federal savings & loan ass’n v. federal savings & loan insurance corp., 589 f.2d 658,',
4262:'664–65 d.c. cir. 1978. a regulation will generally be found arbitrary and capricious— “if the agency has relied on factors',
4263:'which congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an',
4264:'explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could',
4265:'not be ascribed to a difference in view or the product of agency expertise.” motor vehicle manufacturers ass’n v. state',
4266:'farm mutual automobile insurance co., 463 u.s. 29, 43 1983. for cases applying the chrysler standards in determining that various',
4267:'regulations do or do not have the force and effect of law, see qwest communications international, inc. v. fcc, 229',
4268:'f.3d 1172, 1180 d.c. cir. 2000; united states v. alameda gateway ltd., 213 f.3d 1161, 1168 9th cir. 2000; horner',
4269:'v. jeffrey, 823 f.2d 1521 fed. cir. 1987; st. mary’s hospital, inc. v. harris, 604 f.2d 407 5th cir. 1979;',
4270:'intermountain forest industry ass’n v. lyng, 683 f. supp. 1330 d. wyo. 1988. 4. waiver of regulations when you ask',
4271:'whether an agency can waive a regulation, you are really asking to what extent an agency is bound by its',
4272:'own regulations. if a given regulation binds the issuing agency, then the agency should not be able to grant ad',
4273:'hoc waivers, unless the governing statute has given it that authority and the agency has built it into the regulation.',
4274:'as discussed previously, a legislative regulation with the force and effect of law that was issued in compliance with the',
4275:'administrative procedure act apa and the statute it implements clearly binds the issuing agency. the courts treat such a regulation',
4276:'essentially the same as a statute; thus, the agency cannot waive the regulation any more than it could waive the',
4277:'page 320 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion statute. see section a.3 of this chapter',
4278:'and cases cited. the underlying philosophy—still valid—was expressed as follows in a 1958 gao decision: “regulations must contain a guide',
4279:'or standard alike to all individuals similarly situated, so that anyone interested may determine his own rights or exemptions thereunder.',
4280:'the administrative agency may not exercise discretion to enforce them against some and to refuse to enforce them against others.”',
4281:'37 comp. gen. 820, 821 1958; see also b243283.2, sept. 27, 1991.21 sometimes legislative regulations or the statutes they implement',
4282:'do explicitly authorize “waivers” in certain circumstances. here, of course, the waiver authority is an integral part of the underlying',
4283:'statutory or regulatory scheme. accordingly, courts give effect to such waiver provisions and, indeed, they may even hold that an',
4284:'agency’s failure to consider or permit waiver is an abuse of discretion. however, the courts usually accord considerable deference to',
4285:'agency decisions on whether or not to grant discretionary waivers. for illustrative cases, see people of the state of new',
4286:'york & public service commission of the state of new york v. fcc, 267 f.3d 91 2nd cir. 2001; bellsouth',
4287:'corporation v. fcc, 162 f.3d 1215 d.c. cir. 1999; rauenhorst v. united states department of transportation, 95 f.3d 715 8th',
4288:'cir. 1996. 21 of course, the government has “prosecutorial discretion” in deciding whether and how to pursue enforcement actions. see',
4289:'section b.4 of this chapter. this is different from the point being made in the text, which is that an',
4290:'agency cannot follow its regulation when it feels like it and not follow it when it does not feel like',
4291:'it. page 321 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion while duly promulgated legislative regulations are',
4292:'almost always22 held to be binding absent a statutory or regulatory provision for waiver, the results are much less definitive',
4293:'when one enters the realm of “nonlegislative” regulations and other agency issuances. as discussed previously, these may include regulations that',
4294:'were published in the federal register under apa procedures but which are classified as interpretative. they also include a variety',
4295:'of nonfederal register documents, such as manuals, handbooks, and internal agency products, some of which may not amount to “regulations”',
4296:'in any obvious sense. as a general proposition, nonlegislative regulations and other agency products do not impose legally binding obligations',
4297:'on the agencies that issue them any more than they impose legally enforceable rights or obligations on parties outside of',
4298:'the agency. this makes sense since, at least conceptually, nonlegislative products—in contrast to legislative regulations—by definition do not carry the',
4299:'force and effect of law. see generally pierce, administrative law treatise §§ 6.1 and 6.6. nonlegislative regulations are particularly open',
4300:'to waiver where the regulations are for the primary benefit of the agency and failure to follow them would not',
4301:'adversely affect private parties. see, e.g., 60 comp. gen. 208, 210 1981 an agency could waive its internal guidelines prescribing',
4302:'the specific evidence required to demonstrate a grantee’s financial responsibility when the agency was otherwise satisfied that the government’s interests',
4303:'were adequately protected. an interesting variation occurred in health systems agency of oklahoma, inc. v. norman, 589 f.2d 486 10th',
4304:'cir. 1978. an application for designation as a health systems agency was submitted to the then department of health, 22',
4305:'american farm lines v. black ball freight service, 397 u.s. 532 1970, is occasionally cited and criticized as an aberrant',
4306:'case in which the supreme court permitted an agency to ignore a legislative regulation. see richard j. pierce, jr., administrative',
4307:'law treatise, § 6.6 at 355 4th ed. 2000. in american farm lines, the court upheld the interstate commerce commission’s',
4308:'grant of an application for temporary operating authority notwithstanding that the application did not include all the specific information items',
4309:'required by the agency’s regulations. however, it is not clear that the court viewed the regulations as legislative or substantive',
4310:'in nature. rather, the court observed that the regulations were “not intended primarily to confer important procedural benefits upon individuals,”',
4311:'but were “mere aids to the exercise of the agency’s independent discretion.” 397 u.s. at 538–39. the court added that',
4312:'“there is no reason to exempt this case from the general principle that ‘[i]t is always within the discretion of',
4313:'a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business',
4314:'before it when in a given case the ends of justice require it.’” id. at 539 citations omitted. page 322',
4315:'gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion education, and welfare hew 55 minutes past the deadline',
4316:'announced in the federal register, because the applicant’s representative overslept. hew refused to accept the application. finding that the deadline',
4317:'was not statutory, that its purpose was the orderly transaction of business, and that internal hew guidelines permitted some discretion',
4318:'in waiving the deadline, the court held hew’s refusal to be an abuse of discretion. on the other hand, there',
4319:'is a substantial body of case law holding that agencies are bound by certain nonlegislative rules. the most significant line',
4320:'of cases here—united states ex rel. accardi v. shaughnessy, 347 u.s. 260 1954, and its progeny—are discussed later in this',
4321:'chapter.23 these cases generally hold that agencies are bound by procedural requirements that they voluntarily impose on themselves when noncompliance',
4322:'with those requirements could prejudice individuals who are facing potential adverse action by the agency. beyond the accardi line of',
4323:'cases, courts seem to assess the binding effect if any of nonlegislative pronouncements more generally in terms of whether the',
4324:'pronouncement amounts to a “regulation” by which the agency “intends” to be bound. thorpe v. housing authority of durham, 393',
4325:'u.s. 268 1969; new england tank industries of new hampshire, inc. v. united states, 861 f.2d 685 fed. cir. 1988;',
4326:'fairington apartments of lafayette v. united states, 7 cl. ct. 647 1985.24 intent to be bound is ascertained by examining',
4327:'“the provision’s language, its context, and any available extrinsic evidence.” chiron corp. & perseptive biosystems, inc. v. national transportation safety',
4328:'board, 198 f.3d 935, 944 d.c. cir. 1999; doe v. hampton, 566 f.2d 265, 281 d.c. cir. 1977. the comptroller',
4329:'general likewise has rejected a “form over substance” approach that turns on what an agency chooses to call its regulation.',
4330:'as stated in one gao decision: “that the bureau’s policy and procedure memoranda were never intended as ‘regulations’ is of',
4331:'no particular import 23 see section c.4 of this chapter entitled “regulations may limit discretion.” 24 in this specific context,',
4332:'the answer to that question determines only whether the pronouncement is binding on the agency. it does not necessarily follow',
4333:'that something found to be a regulation should have been published under apa procedures or that it has the force',
4334:'and effect of law on parties outside the agency. these are separate although related questions that have their own tests',
4335:'and standards. page 323 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion since whether or not they',
4336:'are such must be determined by their operative nature.” 43 comp. gen. 31, 34 1963. in assessing the binding nature',
4337:'of a nonlegislative regulation or other agency document, the language of the document itself is obviously an important starting point.',
4338:'brock v. cathedral bluffs shale oil co., 796 f.2d 533, 537–38 d.c. cir. 1986; city of williams v. dombeck, 151',
4339:'f. supp. 2d 9 d.d.c. 2001. other factors that may provide some indication of intent, although they are not dispositive,',
4340:'are whether the item has been published in the federal register failure to do so suggests an intent that the',
4341:'item be nonbinding, and, more significantly, whether it has been published in the code of federal regulations under 44 u.s.c.',
4342:'§ 1510, the c.f.r. is supposed to contain only documents with “legal effect”. brock, 796 f.2d at 538–39. for further',
4343:'reading on this interesting and still evolving topic of what agency products have binding effect, see: william r. anderson, informal',
4344:'agency advice—graphing the critical analysis, 54 admin. l. rev. 595 2002; robert a. anthony, “interpretive” rules, “legislative” rules and “spurious”',
4345:'rules: lifting the smog, 8 admin. l. j. am. u. 1 1994; joshua i. schwartz, the irresistible force meets the',
4346:'immovable object: estoppel remedies for an agency’s violation of its own regulations or other misconduct, 44 admin. l. rev. 653',
4347:'1992; peter ravenhansen, regulatory estoppel: when agencies break their own ‘laws,’ 64 tex. l. rev. 1 1985; and note, violations',
4348:'by agencies of their own regulations, 87 harv. l. rev. 629 1974. 5. amendment of regulations it has long been',
4349:'recognized that the authority to issue regulations includes the authority to amend or revoke those regulations, at least prospectively. e.g.,',
4350:'21 comp. dec. 482, 484 1915. this commonsense proposition is reflected in the administrative procedure act’s apa definition of rulemaking',
4351:'as the “agency process for formulating, amending, or repealing a rule.” 5 u.s.c. § 5515. an amendment to a regulation,',
4352:'like the parent regulation itself, must of course remain within the bounds of the agency’s statutory authority. b221779, mar. 24,',
4353:'1986; b202568, sept. 11, 1981. as the apa’s definition of rulemaking makes clear, an amendment to a regulation is subject',
4354:'to the apa to the same extent as the parent regulation. thus, if a regulation is required to follow the',
4355:'notice and comment page 324 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion procedures of 5 u.s.c.',
4356:'§ 553, an amendment or repeal of that regulation must generally follow the same procedures. utility solid waste activities group',
4357:'v. epa, 236 f.3d 749 d.c. cir. 2001; consumer energy council of america v. federal energy regulatory commission, 673 f.2d',
4358:'425, 446 d.c. cir. 1982, aff’d and cert. denied, 463 u.s. 1216 1983; detroit edison co. v. epa, 496 f.2d',
4359:'244 6th cir. 1974; citibank, federal savings bank v. federal deposit insurance corp., 836 f. supp. 3, 7 d.d.c. 1993;',
4360:'b221779, supra. if a regulation is subject to the apa’s informal rulemaking requirements, an unpublished agency document that purports to',
4361:'amend that regulation is invalid. utility solid waste activities group, 236 f.3d at 754; fiorentino v. united states, 607 f.2d',
4362:'963, 968 ct. cl. 1979, cert. denied, 444 u.s. 1083 1980; 65 comp. gen. 439 1986; b226499, apr. 1, 1987.',
4363:'it is possible to have a regulation subject to 5 u.s.c. § 553 with an amendment to that regulation that',
4364:'falls within one of the exemptions, in which event the amendment need not comply with the apa procedures. see detroit',
4365:'edison, 496 f.2d at 245, 249; b202568, sept. 11, 1981; 5 op. off. legal counsel 104 1981. if a parent',
4366:'regulation is exempt from compliance with the apa but the agency has, without formally waiving the exemption, published it under',
4367:'apa procedures anyway, the voluntary compliance will not operate as a waiver. the agency may subsequently amend or repeal the',
4368:'regulation without following the apa. baylor university medical center v. heckler, 758 f.2d 1052 5th cir. 1985; malekmarzban v. immigration',
4369:'& naturalization service, 653 f.2d 113 4th cir. 1981; washington hospital center v. heckler, 581 f. supp. 195 d.d.c. 1984.',
4370:'thus, in malekmarzban the immigration and naturalization service ins had issued a regulation without advance notice and comment, citing the',
4371:'“foreign affairs” exception from apa rulemaking requirements in 5 u.s.c. § 553a1. the court held that the agency was not',
4372:'bound to follow apa rulemaking procedures in this case even though it had voluntarily used such procedures for past regulations',
4373:'that were likewise subject to the foreign affairs exception: “we are not persuaded by the petitioners’ argument that the ins',
4374:'is estopped from asserting the foreign affairs exception because it has routinely complied with the apa rulemaking requirements in the',
4375:'past. voluntarily submitting a policy decision involving a foreign affairs function to rulemaking page 325 gao04261sp appropriations law—vol. i chapter',
4376:'3 agency regulations and administrative discretion procedures is commendable, but it does not restrict an agency’s prerogatives when circumstances require',
4377:'swift action.” 653 f.2d at 116.25 6. retroactivity a number of decisions have pointed out that amendments to regulations should',
4378:'be prospective only. e.g., 35 comp. gen. 187 1955; 32 comp. gen. 315 1953; 2 comp. gen. 342 1922; 21',
4379:'comp. dec. 482 1915. the theory is that amendments should not affect rights or reliance accruing under the old regulation.',
4380:'while these are still crucial concerns, the law is not quite that simple. at the outset, it may be useful',
4381:'to understand the difference between “primary” and “secondary” retroactivity. primary retroactivity changes the past legal consequences of past actions. secondary',
4382:'retroactivity changes the future legal consequences of past actions. see generally bowen v. georgetown university hospital, 488 u.s. 204, 219–20',
4383:'1988 justice scalia, concurring. to take a concrete illustration, when individual retirement accounts ira were first authorized, most people could',
4384:'take an income tax deduction for amounts deposited into an ira, up to a statutory ceiling. a few years later,',
4385:'congress changed the law to eliminate the deduction for persons covered by certain types of retirement plans. this is an',
4386:'example of secondary retroactivity. persons affected by the amendment could no longer deduct ira contributions in the future, but the',
4387:'deductions they had taken in the past were not affected. a purely prospective amendment would have applied only to new',
4388:'iras opened on or after the effective date of the amendment. if congress had attempted to invalidate deductions taken prior',
4389:'to the amendment, this would have been primary retroactivity. although statutes are generally presumed to operate prospectively, congress has the',
4390:'authority to make its laws retroactive in both the primary and the secondary sense subject, of course, to such constitutional',
4391:'limitations as due process, the impairment of contracts, and the prohibition 25 cases such as malekmarzban are distinguishable from those',
4392:'discussed previously in section a.1.b of this chapter. the section a.1.b cases involve situations in which an agency formally waived',
4393:'the benefit of apa exemptions for its regulations. page 326 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative',
4394:'discretion against “ex post facto” laws.26 the same cannot be said of agency regulations. there is no blanket prohibition on',
4395:'secondary retroactivity in agency regulations, subject to the “arbitrary or capricious” standard of the apa. see bowen, 488 u.s. at',
4396:'220; celtronix telemetry v. fcc, 272 f.3d 585 d.c. cir. 2001, cert. denied, 536 u.s. 923 2002; united states airwaves,',
4397:'inc. v. fcc, 232 f.3d 227 d.c. cir. 2000. with respect to primary retroactivity, however, the bowen court held that:',
4398:'“[a] statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to',
4399:'promulgate retroactive rules unless that power is conveyed by congress in express terms.” id. at 208. see also orrego v.',
4400:'833 west buena joint venture, 943 f.2d 730, 736 7th cir. 1991. the bowen decision has been criticized, but it',
4401:'has never been overruled. see richard j. pierce, jr., administrative law treatise § 6.7 4th ed. 2000 & 2003 supp..',
4402:'thus, agencies generally cannot engage in rulemaking that involves primary retroactivity without specific statutory authority. there may be some room',
4403:'for exceptions even from the strict proscription of the bowen rule, based on a balancing of interests in a particular',
4404:'case. see bowen, 488 u.s. at 224–25; citizens to save spencer county v. epa, 600 f.2d 844, 879–81 d.c. cir.',
4405:'1979; saint francis memorial hospital v. weinberger, 413 f. supp. 323, 332–33 n.d. cal. 1976. reduced stringency may also be',
4406:'appropriate in the case of a policy statement,27 or certain interpretative rules.28 furthermore, rules that are held to merely clarify',
4407:'prior rules do not run afoul of the bowen prohibition against retroactivity. see clay v. johnson, 264 f.3d 744 7th',
4408:'cir. 2001. 26 see chapter 2, section d.5 for a discussion of retroactivity with respect to statutes. 27 e.g., iowa',
4409:'power & light co. v. burlington northern, inc., 647 f.2d 796, 812 8th cir. 1981, cert. denied, 455 u.s. 907',
4410:'1982. 28 e.g., farmers telephone co. v. fcc, 184 f.3d 1241 10th cir. 1999; caterpillar tractor co. v. united states,',
4411:'589 f.2d 1040, 1043 ct. cl. 1978; but see health insurance ass’n of america v. shalala, 23 f.3d 412 d.c.',
4412:'cir. 1994. page 327 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion the prohibition on retroactivity in',
4413:'rulemaking does not apply to adjudication. bowen, 488 u.s. at 220–21 concurring opinion. in the context of adjudication, retroactivity is',
4414:'measured against a standard of reasonableness and a balancing of interests. e.g., laborers’ international union of north america, aflcio v.',
4415:'foster wheeler energy corp., 26 f.3d 375 386–395 3rd cir., cert. denied, 513 u.s. 946 1994; tennessee gas pipeline co.',
4416:'v. federal energy regulatory commission, 606 f.2d 1094, 1116 n.77 d.c. cir. 1979, cert. denied, 445 u.s. 920 1980 and',
4417:'447 u.s. 922 1980; nlrb v. majestic weaving co., 355 f.2d 854 2nd cir. 1966; shell oil co. v. kleppe,',
4418:'426 f. supp. 894, 908 d. colo. 1977. as suggested above, the extent to which a balancing approach might justify',
4419:'exceptions from the bowen rule with respect to regulations remains to be determined. b. agency administrative interpretations “there is more',
4420:'ado to interpret interpretations than to interpret the things, and more books upon books than upon all other subjects; we',
4421:'do nothing but comment upon one another.” michel eyquem, seigneur de montaigne, book iii, chap. xiii, of experience. “we begin',
4422:'our analysis with the language of the exemption itself which, at the critical part, is as clear as mud.” in',
4423:'re whalen, 73 b.r. 986, 988 c.d. ill. 1987. 1. interpretation of statutes the interpretation of a statute, by regulation',
4424:'or otherwise, by the agency congress has charged with the responsibility for administering it, is entitled to considerable weight. this',
4425:'principle is really a matter of common sense. an agency that works with a program from day to day develops',
4426:'an expertise that should not be lightly disregarded. even when dealing with a new law, congress does not entrust administration',
4427:'to a particular agency without reason, and this decision merits respect. this, in addition to page 328 gao04261sp appropriations law—vol.',
4428:'i chapter 3 agency regulations and administrative discretion fundamental fairness, is why gao considers it important to obtain agency comments',
4429:'wherever possible before rendering a decision.29 in the oftencited case of udall v. tallman, 380 u.s. 1, 16 1965, the',
4430:'supreme court stated the principle this way: “when faced with a problem of statutory construction, this court shows great deference',
4431:'to the interpretation given the statute by the officers or agency charged with its administration.” in what is now recognized',
4432:'as one of the key cases in determining how much “deference” is due an agency interpretation, chevron, inc. v. natural',
4433:'resources defense council, 467 u.s. 837 1984, the court formulated its approach to deference in terms of two questions. the',
4434:'first question is “whether congress has directly spoken to the precise question at issue.” id. at 842. if it has,',
4435:'the agency must of course comply with clear congressional intent, and regulations to the contrary will be invalidated. thus, before',
4436:'you ever get to questions of deference, it must first be determined that the regulation is not contrary to the',
4437:'statute, a question of delegated authority rather than deference. “if a court, employing traditional tools of statutory construction, ascertains that',
4438:'congress had an intention on the precise question at issue, that intention is the law and must be given effect.”',
4439:'id. at 843 n.9. once you cross this threshold, that is, once you determine that “the statute is silent or',
4440:'ambiguous with respect to the specific issue,” the question becomes “whether the agency’s answer is based on a permissible construction',
4441:'of the statute.” id. at 843. the court went on to say: “if congress has explicitly left a gap for',
4442:'the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of',
4443:'the statute by regulation. 29 gao’s desire for agency comments applies to audit reports as well as legal decisions. however,',
4444:'in view of the fundamental differences between the two products, the process differs. for gao’s policy for audit reports, see',
4445:'u.s. general accounting office, gao’s agency protocols, gao03232sp washington, d.c.: dec. 2, 2002. for a legal decision, gao’s typical practice',
4446:'is to solicit the agency’s position on the legal issues involved before a draft is ever written. a “development letter”',
4447:'is used to document facts, refine legal issues, and obtain the agency’s perspective on the law and its implementation. accordingly,',
4448:'draft legal decisions are not submitted for comment. page 329 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative',
4449:'discretion such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. sometimes',
4450:'the legislative delegation to an agency on a particular question is implicit rather than explicit. in such a case, a',
4451:'court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of',
4452:'an agency.” id. at 843–44 footnotes omitted. reiterating the traditional deference concept, the court then said that the proper standard',
4453:'of review is not whether the agency’s construction is “inappropriate,” but merely whether it is “a reasonable one.” id. at',
4454:'844–45. when the agency’s interpretation is in the form of a regulation with the force and effect of law, the',
4455:'deference, as we have seen, is at its highest.30 the agency’s position is entitled to chevron deference and should be',
4456:'upheld unless it is arbitrary or capricious. there should be no question of substitution of judgment. if the agency position',
4457:'can be said to be reasonable or to have a rational basis within the statutory grant of authority, it should',
4458:'stand, even though the reviewing body finds some other position preferable. see yellow transportation, inc. v. michigan, 537 u.s. 36',
4459:'2002; shalala v. illinois council on long term care, inc., 529 u.s. 1, 20–21 2000; american telephone & telegraph corp.',
4460:'v. iowa utility board, 525 u.s. 366 1999. chevron deference is also given to authoritative agency positions in formal adjudication.',
4461:'see immigration & naturalization service v. aguirreaguirre, 526 u.s. 415 1999 holding that a bureau of indian affairs statutory interpretation',
4462:'developed in caseby case formal adjudication should be accorded chevron deference. for an extensive list of supreme court cases giving',
4463:'chevron deference to agency statutory interpretations found in rulemaking or formal adjudication, see united states v. mead corp., 533 u.s.',
4464:'218, 231 at n.12 2001. when the agency’s interpretation is in the form of an interpretative regulation, manual, handbook, etc.—anything',
4465:'short of a regulation with the 30 “when congress has ‘explicitly left a gap for the agency to fill, there',
4466:'is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation,’ and',
4467:'any ensuing regulation is binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to',
4468:'the statute.” united states v. mead corp., 533 u.s. 218, 227 2001, quoting chevron, 467 u.s. at 843–44. page 330',
4469:'gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion force and effect of law or formal adjudication—the standard',
4470:'of review has traditionally been somewhat lessened, and it is here that the question of deference really comes into play.',
4471:'in the past, deference in this context has not been a fixed concept, but has been variable, depending on the',
4472:'interplay of several factors.31the supreme court explained the approach as follows in skidmore v. swift & co., 323 u.s. 134,',
4473:'140 1944: “we consider that the rulings, interpretations and opinions of the administrator under this act, while not controlling upon',
4474:'the courts by reason of their authority [i.e., the statements in question were not regulations with the force and effect',
4475:'of law], do constitute a body of experience and informed judgment to which courts and litigants may properly resort for',
4476:'guidance. the weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration,',
4477:'the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power',
4478:'to persuade, if lacking power to control.” courts have found that the degree of weight to be given an agency',
4479:'administrative interpretation varies with several factors: the nature and degree of expertise possessed by the agency. barnhart v. walton, 535',
4480:'u.s. 212 2002; batterton v. francis, 432 u.s. at 425 n.9; nlrb v. oklahoma fixture co., 332 f.3d 1284 10th',
4481:'cir. 2003; schuetz v. banc one mortgage corp., 292 f.3d 1004, 1012 9th cir. 2002; herman v. springfield massachusetts area,',
4482:'local 497, american postal workers union, aflcio, 201 f.3d 1, 5 1st cir. 2000. 31 the basic premise that an',
4483:'agency interpretation is entitled to some largely undefined degree of deference had consistently been espoused by the supreme court for',
4484:'well over a century and a half. see, e.g., chrysler corp. v. brown, 441 u.s. 281, 315 1979; batterton v.',
4485:'francis, 432 u.s. 416, 424–25 1977; general electric co. v. gilbert, 429 u.s. 125, 141 1976 referring to the quoted',
4486:'passage from skidmore, infra text, as the “most comprehensive statement of the role of interpretative rulings”; united states v. philbrick,',
4487:'120 u.s. 52, 59 1887; hahn v. united states, 107 u.s. 402, 406 1882; united states v. pugh, 99 u.s.',
4488:'265, 269 1878; united states v. moore, 95 u.s. 760, 763 1877; edwards’ lessee v. darby, 25 u.s. 12 wheat.',
4489:'206, 210 1827. page 331 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion the duration and consistency',
4490:'of the interpretation. good samaritan hospital v. shalala, 508 u.s. 402, 417 1993; chrysler corp., 441 u.s. at 315; batterton,',
4491:'432 u.s. at 425 n.9; skidmore, 323 u.s. at 140; zeigler coal co. v. director, office of workers’ compensation programs,',
4492:'department of labor, 326 f.3d 894, 901 7th cir. 2003; herman, 201 f.3d at 5; united states v. occidental chemical',
4493:'corp., 200 f.3d 143, 151–52 1999; reich v. gateway press, 13 f.3d 685, 692–93 1994; b284610, mar. 3, 2000. while',
4494:'consistency may not always be a virtue, inconsistency will not help your case in court. see equal employment opportunity commission',
4495:'v. arabian american oil co., 499 u.s. 244 1991 superseded by statute; immigration & naturalization service v. cardozafonseca, 480 u.s.',
4496:'421, 446 n.30 1987. the soundness and thoroughness of reasoning underlying the position. skidmore, 323 u.s. at 140; arriaga v.',
4497:'florida pacific farms, l.l.c., 305 f.3d 1228, 1239 11th cir. 2002. evidence or lack thereof of congressional awareness of, and',
4498:'acquiescence in, the administrative position. united states v. american trucking ass’n, 310 u.s. 534, 549–50 1940; helvering v. winmill, 305',
4499:'u.s. 79, 82–3 1938; norwegian nitrogen products co. v. united states, 288 u.s. 294, 313–15 1933; collins v. united states,',
4500:'946 f.2d 864 fed. cir. 1991; davis v. director, office of workers’ compensation programs, department of labor, 936 f.2d 1111,',
4501:'1115–16 10th cir. 1991; 41 op. att’y gen. 57 1950; b114829o.m., july 17, 1974. “[i]ncreasingly muddled” supreme court decisions on',
4502:'the scope of chevron have left unclear the amount of deference due less formal pronouncements like interpretive rules and informal',
4503:'adjudications.32 in 2000, the supreme court appeared to resolve the issue of how much deference was due these less formal',
4504:'pronouncements. the court distinguished less formal pronouncements that “lack the force of law” from statutory interpretations in legislative rules and',
4505:'formal adjudications, holding that actions other than orders that are issued through use of the notice and comment procedure are',
4506:'only entitled to skidmore deference. christensen v. harris county, 529 u.s. 576 2000. however, the supreme court later retreated from',
4507:'this position in mead corp., 533 u.s. 218, holding that chevron deference may 32 richard j. pierce, jr., administrative law',
4508:'treatise, 10 4th ed. 2003 supp.. page 332 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion extend',
4509:'to statutory interpretations beyond those contained in legislative rules and adjudications where there is “a comparable congressional intent” to give',
4510:'such interpretations the force of law. more recent decisions further indicate that chevron deference may extend beyond legislative rules and',
4511:'formal adjudications. most notably, the supreme court observed in dicta in barnhart v. walton, 535 u.s. at 222, that mead',
4512:'corp. “denied [any] suggestion” in christensen that chevron deference was limited to interpretations adopted through formal rulemaking. the barnhart opinion',
4513:'went on to say that: “in this case, the interstitial nature of the legal question, the related expertise of the',
4514:'agency, the importance of the question to the administration of the statute, the complexity of that administration, and the careful',
4515:'consideration the agency has given the question over a long period of time all indicate that chevron provides the appropriate',
4516:'legal lens through which to view the legality of the agency interpretation here at issue.” id. at 222.33 at least',
4517:'one court has viewed this passage from barnhart as suggesting a merger between chevron deference and the skidmore approach of',
4518:'varying the deference an agency receives based on a number of factors. see krzalic v. republic title co., 314 f.3d',
4519:'875, 878–79 7th cir. 2002, cert. denied, u.s. , 123 s. ct. 2641 2003. circuit court decisions have added to',
4520:'the confusion. see james v. von zemenszky, 301 f.3d 1364 fed. cir. 2002 ignoring barnhart factors because the agency statutory',
4521:'interpretation contained in a directive and handbook “f[e]ll within the class of informal agency interpretations that do not ordinarily merit',
4522:'chevron deference”; federal election commission v. national rifle ass’n, 254 f.3d 173 d.c. cir. 2001 holding that federal election committee',
4523:'fec advisory opinions are entitled to chevron deference; matz v. household international tax 33 justice scalia, in his separate opinion',
4524:'in barnhart, and other commentators have criticized this statement as unnecessary and indicated that this statement may pose a new',
4525:'but imprecise test for the applicability of chevron. see barnhart, 535 u.s. at 226 scalia, j., concurring; pierce, administrative law',
4526:'treatise, at 8. page 333 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion reduction investment plan, 265',
4527:'f.3d 572 7th cir. 2001 holding that an internal revenue service irs statutory interpretation in an amicus brief, supported by',
4528:'an irs revenue ruling and agency manual, was not entitled to chevron deference; klinedinst v. swift investments, inc., 260 f.3d',
4529:'1251 11th cir. 2001 holding that a department of labor handbook was not due chevron deference; teambank v. mcclure, 279',
4530:'f.3d 614 8th cir. 2001 holding that office of the controller of the currency informal adjudications are due chevron deference;',
4531:'in re sealed case, 223 f.3d 775 d.c. cir. 2000 holding that fec’s probable cause determinations are entitled to chevron',
4532:'deference. as professor pierce notes: “after mead, it is possible to know only that legislative rules and formal adjudications are',
4533:'always entitled to chevron deference, while less formal pronouncements like interpretative rules and informal adjudications may or may not be',
4534:'entitled to chevron deference. the deference due a less formal pronouncement seems to depend on the results of judicial application',
4535:'of an apparently openended list of factors that arguably qualify as ‘other indication[s] of a comparable congressional intent’ to give',
4536:'a particular type of agency pronouncement the force of law.”34 for illustrations of how gao has applied the deference principle',
4537:'in recent decisions, see: 69 comp. gen. 274 1990 holding that the defense personnel support center’s longstanding interpretation of a',
4538:'department of defense appropriation act provision is entitled to deference. b290744, sept. 13, 2002 declining to apply chevron or skidmore',
4539:'deference to the federal highway administration’s interpretation of a statute because the interpretation was not a reasonable construction of the',
4540:'statute. b288658, nov. 30, 2001 finding that neither chevron nor skidmore deference was due a department of agriculture interpretation of',
4541:'a statute because the agency interpretation did not derive from a rulemaking or adjudication and generally lacked “persuasive weight”. 34',
4542:'pierce, administrative law treatise, at 6–7. page 334 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion b286800,',
4543:'feb. 21, 2001 finding that a department of defense interpretation of its regulation deserves great weight, that the agency’s interpretation',
4544:'of its regulations was reasonable, and viewing as significant the fact that the agency was consistent in its interpretation. b286661,',
4545:'jan. 19, 2001 declining to apply principle of deference to a department of energy statutory interpretation because it was not',
4546:'based on a reasonable interpretation of the statute. b286026, june 12, 2001 applying chevron deference to office of personnel management’s',
4547:'guidance on the government employees training act. b285066.2, aug. 9, 2000 applying chevron deference to department of housing and urban',
4548:'development’s interpretation of the operation safe home appropriation as making funds available for gun buybacks. in the past, an agency’s',
4549:'litigating position was not accorded any deference unless that position was also expressed in the regulations, rulings, or administrative practice',
4550:'of the agency. bowen v. georgetown university hospital, 488 u.s. 204, 212 1988. some recent cases, however, have given some',
4551:'deference to an agency’s statutory interpretation developed only in the course of litigation. for example, in brown v. united states,',
4552:'327 f.3d 1198 d.c. cir. 2003, the court did not reach the question of whether an agency’s statutory interpretation developed',
4553:'in the course of litigation was due chevron deference, holding that the interpretation prevailed under skidmore. see also vernazza v.',
4554:'sec, 327 f.3d 851 9th cir. 2003 agency’s statutory interpretation advanced in enforcement action is not entitled to chevron deference,',
4555:'but is entitled to skidmore deference; chao v. russell p. le frois builder, inc., 291 f.3d 219 2nd cir. 2002',
4556:'holding that the secretary of labor’s statutory interpretation set forth only in litigation was not due chevron deference, but merited',
4557:'skidmore deference. the deference principle does not apply to an agency’s interpretation of a statute that is not part of',
4558:'its program or enabling legislation or is a statute of general applicability. see adams v. sec, 287 f.3d 183 d.c.',
4559:'cir. 2002; contractor’s sand & gravel v. federal mine safety & health commission, 199 f.3d 1335 d.c. cir. 2000; association',
4560:'of civilian technicians v. federal labor relations authority, 200 f.3d 590 9th cir. 2000. page 335 gao04261sp appropriations law—vol. i',
4561:'chapter 3 agency regulations and administrative discretion as noted above, a regulation with the force and effect of law merits',
4562:'chevron deference. in this connection, it is necessary to elaborate somewhat on one of the tests in chrysler corp. v.',
4563:'brown, 441 u.s. 281 1979—that the regulation be issued pursuant to a statutory grant of ‘legislative’ i.e., rulemaking authority. how',
4564:'specific must the statutory delegation be? chrysler itself provides somewhat conflicting signals. in one place, in the course of listing',
4565:'the three tests for determining if a regulation has the force and effect of law, the court gives as an',
4566:'example the proxy rules of the securities and exchange commission sec. chrysler, 441 u.s. at 302–03. these are issued under',
4567:'the explicit delegation of 15 u.s.c. § 78n, which authorizes the sec to issue proxy rules. yet in another place,',
4568:'the court said: “this is not to say that any grant of legislative authority to a federal agency by congress',
4569:'must be specific before regulations promulgated pursuant to it can be binding on courts in a manner akin to statutes.',
4570:'what is important is that the reviewing court reasonably be able to conclude that the grant of authority contemplates the',
4571:'regulations issued.” chrysler, 441 u.s. at 308. while a court is certainly more likely to find that chevron deference is',
4572:'due when the delegation of authority is specific, courts have also found that more general delegations are entitled to chevron',
4573:'deference. see united states v. haggar apparel co., 526 u.s. 380 1999 holding that chevron deference was due to a',
4574:'customs service regulation interpreting a statute that required the court of international trade to “reach the correct decision” in determining',
4575:'the proper classification of goods. a good example is the deference that courts have accorded to irs regulations. the secretary',
4576:'of the treasury has general authority to “prescribe all needful rules and regulations” to administer the internal revenue code. 26',
4577:'u.s.c. § 7805. in addition, various other provisions of the internal revenue code authorize the issuance of regulations dealing with',
4578:'specific topics. regulations issued under the general authority of 26 u.s.c. § 7805— statutory though they may be—are not given',
4579:'the force and effect of law, and have often been accorded less deference than regulations issued under one of the',
4580:'more specific provisions. see united states v. vogel fertilizer co., 455 u.s. 16, 24 1982; rowan cos. v. united states,',
4581:'452 u.s. 247, 252– 53 1981; e. norman peterson marital trust v. commissioner of internal revenue, 78 f.3d 795, 798',
4582:'2nd cir. 1996; nalle v. commissioner of internal revenue, 997 f.2d 1134, 1138 5th cir. 1993; mcdonald v. page 336',
4583:'gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion commissioner of internal revenue, 764 f.2d 322, 328 5th',
4584:'cir. 1985; gerrard v. united states office of education, 656 f. supp. 570, 574 n.4 n.d. cal. 1987; lima surgical',
4585:'associates, inc. v. united states, 20 cl. ct. 674, 679 n.8 1990. in some recent cases, however, courts have given',
4586:'chevron deference to irs regulations issued through notice and comment rulemaking under the general authority of section 7805. atlantic mutual',
4587:'insurance co. v. commissioner of internal revenue, 523 u.s. 382 1998; kikalos v. commissioner of internal revenue, 190 f.3d 791',
4588:'7th cir. 1999; redlark v. commissioner of internal revenue, 141 f.3d 936 9th cir. 1998; bankers life & casualty co.',
4589:'v. united states, 142 f.3d 973 7th cir. 1998; tate & lyle, inc. v. commissioner of internal revenue, 87 f.3d',
4590:'99 3rd cir. 1996. we began this chapter by noting the increasing role of agency regulations in the overall scheme',
4591:'of federal law. we conclude this discussion with the observation that this enhanced role makes continued litigation on the issues',
4592:'we have outlined inevitable. the proliferation and complexity of case law perhaps lends credence to professor davis’s mild cynicism: “unquestionably',
4593:'one of the most important factors in each decision on what weight to give an interpretative rule is the degree',
4594:'of judicial agreement or disagreement with the rule.”35 2. interpretation of agency’s own regulations the principle of giving considerable deference',
4595:'to the administering agency’s interpretation of a statute applies at least with equal force to an agencys interpretation of its',
4596:'own regulations. the udall v. tallman court, after making the statement quoted at the beginning of this section, went on',
4597:'to state that “[w]hen the construction of an administrative regulation rather than a statute is in issue, deference is even',
4598:'more clearly in order.” udall v. tallman, 380 u.s. 1, 16 1965. perhaps the strongest statement is found in a',
4599:'1945 supreme court decision, bowles v. seminole rock & sand co., 325 u.s. 410, 413–14: “since this involves an interpretation',
4600:'of an administrative regulation a court must necessarily look to the 35 2 administrative law treatise § 7:13 2nd ed.',
4601:'1979. page 337 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion administrative construction of the regulation if',
4602:'the meaning of the words used is in doubt. the intention of congress or the principles of the constitution in',
4603:'some situations may be relevant in the first instance in choosing between various constructions. but the ultimate criterion is the',
4604:'administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.”36 a good illustration',
4605:'of how all of this can work is found in b222666, jan. 11, 1988. the defense security assistance agency dsaa',
4606:'is responsible for issuing instructions and procedures for foreign military sales fms transactions. these appear in the security assistance management',
4607:'manual. a disagreement arose between dsaa and an army operating command as to whether certain “reports of discrepancy,” representing charges',
4608:'for nonreceipt by customers, should be charged to the fms trust fund which would effectively pass the losses on to',
4609:'all fms customers or to army appropriated funds. dsaa took the latter position. gao reviewed the regulation in question, and',
4610:'found it far from clear on this point. the decision noted that “both of the conflicting interpretations in this case',
4611:'appear to have merit, and both derive support from portions of the regulation.” however, while the regulation may have been',
4612:'complex, the solution to the problem was fairly simple. dsaa wrote the regulation and gao, citing the standard from the',
4613:'bowles case, could not conclude that dsaa’s position was plainly erroneous or inconsistent with the regulation. therefore, dsaa’s interpretation must',
4614:'prevail. see shalala v. guernsey memorial hospital, 514 u.s. 87 1995; thomas jefferson university v. shalala, 512 u.s. 504 1994;',
4615:'stinson v. united states, 508 u.s. 36 1993; williams v. united states, 503 u.s. 193 1992; immigration & naturalization service',
4616:'v. stanisic, 395 u.s. 62, 72 1969; navarro miranda v. ashcroft, 330 f.3d 672 5th cir. 2003; tozzi v. department',
4617:'of health & human services, 271 f.3d 301 d.c. cir. 2001; legal environmental assistance foundation v. epa, 276 f.3d 1253',
4618:'11th cir. 2001; 72 comp. gen. 241 1993; 57 comp. gen. 347 1978; 56 comp. gen. 160 1976; b279250 may',
4619:'26, 1998. see also mclean hospital corp. v. united states, 26 cl. ct. 1144 1992 holding that an agency 36',
4620:'while this determines the controlling interpretation, the propriety of that interpretation does not automatically follow. as the court went on',
4621:'to caution in the very next sentence, “[t]he legality of the result reached by this process, of course, is quite',
4622:'a different matter.” bowles, 325 u.s. at 414. page 338 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative',
4623:'discretion interpretation of a regulation is not entitled to deference when it violates the plain meaning of the regulation. just',
4624:'as with the interpretation of statutes, inconsistency in the application of a regulation will significantly diminish the deference courts are',
4625:'likely to give the agency’s position. e.g., western states petroleum ass’n v. epa, 87 f.3d 280 9th cir. 1996; murphy',
4626:'v. united states, 22 cl. ct. 147, 154 1990. several recent court decisions have held that agency interpretations of regulations',
4627:'are subject to some degree of deference even if they derive from “mere litigating positions” rather than formal rules or',
4628:'adjudications. see auer v. robbins, 519 u.s. 452 1997; bigelow v. department of defense, 217 f.3d 875 d.c. cir. 2000,',
4629:'cert. denied, 532 u.s. 971 2001; national wildlife federation v. browner, 127 f.3d 1126 d.c. cir. 1997; bradberry v. director,',
4630:'office of workers’ compensation, department of labor, 117 f.3d 1361 11th cir. 1997. in this context, some courts have begun',
4631:'to refer to “auer deference.” see christensen v. harris county, 529 u.s. 576, 577 2000; moore v. hannon food service,',
4632:'317 f.3d 489, 494– 95 5th cir. 2003; league of wilderness defenders/blue mountain biodiversity project v. forsgren, 309 f.3d 1181,',
4633:'1189 9th cir. 2002; drake v. federal aviation administration, 291 f.3d 59, 68 d.c. cir. 2002. see also wells fargo',
4634:'bank of texas v. james, 321 f.3d 488, 494 5th cir. 2003 “auer v. robbins offer[s] the standard to be',
4635:'used where an agency interprets its own regulation.”. in order to warrant auer deference, the text of a regulation must',
4636:'fairly support the agency’s interpretation. see christiansen, 529 u.s. at 577; drake, 291 f.3d at 68; wells fargo bank of',
4637:'texas v. james, 321 f.3d at 494; ashtabula county medical center v. thompson, 191 f. supp. 2d 884, 888 n.d.',
4638:'ohio 2002. thus, auer will not apply if the plain and unambiguous language of the regulation is at odds with',
4639:'the agency’s interpretation. in such a case, the agency’s “interpretation” really amounts to a de facto amendment of the regulation.',
4640:'in limited contexts, some recent court decisions have suggested that a somewhat lesser degree of deference than that in bowles',
4641:'applies to agency interpretations of their regulations. for example, a series of decisions have applied a lesser degree of deference',
4642:'to ambiguous agency regulations. see director, office of workers’ compensation programs, department of labor v. greenwich collieries, 512 u.s. 267',
4643:'1994; mission group kansas, inc. v. riley, 146 f.3d 775 10th cir. 1998. another line of circuit court decisions accords',
4644:'less deference to agency interpretations of regulations that impose penalties. see walker stone co. v. secretary of page 339 gao04261sp',
4645:'appropriations law—vol. i chapter 3 agency regulations and administrative discretion labor, 156 f.3d 1076 10th cir. 1998; stillwater mining co.',
4646:'v. federal mine safety & health review commission, 142 f.3d 1179 9th cir. 1998; united states v. chrysler corp., 158',
4647:'f.3d 1350 d.c. cir. 1998; united states v. apex oil co., 132 f.3d 1287 9th cir. 1997. c. administrative discretion',
4648:'“[s]ome play must be allowed to the joints if the machine is to work.” tyson & brother v. banton, 273',
4649:'u.s. 418, 446 1927 justice holmes, dissenting. 1. introduction throughout this publication, the reader will encounter frequent references to administrative',
4650:'discretion. the concept of discretion implies choice or freedom of judgment, and appears in a variety of contexts. there are',
4651:'many things an agency does every day that involve making choices and exercising discretion. one type of discretion commonly occurs',
4652:'in the context of purpose availability. a decision may conclude that an appropriation is legally available for a particular expenditure',
4653:'if the agency, in its discretion, determines that the expenditure is a suitable means of accomplishing an authorized end. to',
4654:'put this another way, there is often more than one way to do something, and reasonable minds may differ as',
4655:'to which way is the best. the thing to keep in mind from the legal perspective is that if a',
4656:'given choice is within the actor’s legitimate range of discretion, then, whatever else it may be, it is not illegal.',
4657:'for example, as we will see in chapter 4, an agency has discretionary authority to provide refreshments at award ceremonies',
4658:'under the government employees incentive awards act, 31 u.s.c. §§ 4501–4507. agency a may choose to do so while agency',
4659:'b chooses not to. under this type of discretion, agency b’s reasons are irrelevant. it may simply not want to',
4660:'spend the money. as a matter of law, both agencies are correct. another type of discretion is implicit in all',
4661:'of the preceding discussions of agency regulations. this type occurs when congress charges an agency with responsibility for implementing a',
4662:'program or statute, but leaves much of the detail to the agency. in the course of carrying out the program',
4663:'or page 340 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion statute, the agency may be required',
4664:'to make various decisions, some of which may be expressly committed to agency discretion by the governing statute. subject to',
4665:'certain fundamental concepts of administrative law, the agency is free to make those decisions in accordance with the sound exercise',
4666:'of discretion. see chevron, inc. v. natural resources defense council, 467 u.s. 837, 843–844, 865–66 1984. under the administrative procedure',
4667:'act apa, action that is “committed to agency discretion by law” is not subject to judicial review. 5 u.s.c. §',
4668:'701a2. as the supreme court has pointed out, this is a “very narrow exception” applicable in “rare instances” where, quoting',
4669:'from the apa’s legislative history, “statutes are drawn in such broad terms that in a given case there is no',
4670:'law to apply.” citizens to preserve overton park, inc. v. volpe, 401 u.s. 402, 410 1971. as noted, the “no',
4671:'law to apply” exception is uncommon, and most exercises of discretion will be found reviewable at least to some extent.37',
4672:'see drake v. federal aviation administration, 291 f.3d 59 d.c. cir. 2002; fox television stations, inc. v. fcc, 280 f.3d',
4673:'1027 d.c. cir. 2002; city of los angeles v. department of commerce, 307 f.3d 859 9th cir. 2002; diebold v.',
4674:'united states, 947 f.2d 787 6th cir. 1992. this being said, however, the presumption of reviewability is at its strongest',
4675:'in constitutional and habeas corpus matters. as professor pierce has noted, overton park is the “high water mark of the',
4676:'court’s presumption of reviewability” and “[s]ubsequent decisions have both weakened the presumption where it continues to exist and narrowed the',
4677:'scope of the presumption.”38 for demonstrations of the weakening of the presumption of reviewability, see: shalala v. illinois council on',
4678:'long term care, inc., 529 u.s. 1 2000 debating whether there is a “presumption in favor of preenforcement review” or',
4679:'a presumption against preclusion of all review; 37 however, agency inaction in declining to initiate enforcement or other regulatory action',
4680:'is subject to “a presumption of unreviewability,” although that presumption is rebuttable. heckler v. chaney, 470 u.s. 821 1985. another',
4681:'obvious exception is if a statute explicitly precludes judicial review. see jordan hospital, inc. v. shalala, 276 f.3d 72 1st',
4682:'cir. 2002; national coalition to save our mall v. norton, 269 f.3d 1092 d.c. cir. 2001 construction of world war',
4683:'ii memorial; ismailov v. reno, 263 f.3d 851 8th cir. 2001 refusal to extend deadline for asylum application. 38 richard',
4684:'j. pierce, jr., administrative law treatise, 1269–70 4th ed. supp. 2003. page 341 gao04261sp appropriations law—vol. i chapter 3 agency',
4685:'regulations and administrative discretion thunder basin coal co. v. reich, 510 u.s. 200 1994 holding that a comprehensive administrative review',
4686:'procedure under the federal mine safety and health amendments act revealed a congressional intent to preclude judicial review; dalton v.',
4687:'specter, 511 u.s. 462 1994 “where, as here, a statute commits decisionmaking to the president’s discretion, judicial review of his',
4688:'decision is not available”; lincoln v. vigil, 508 u.s. 182 1993 holding that allocation of funds under a lumpsum appropriation',
4689:'is traditionally committed to agency discretion and, therefore, not subject to judicial review under the apa absent more specific restrictions;',
4690:'lopez v. federal aviation administration, 318 f.3d 242 d.c. cir. 2003 and steenholdt v. federal aviation administration, 314 f.3d 633',
4691:'d.c. cir. 2003 holding that the federal aviation administration’s faa rescission or nonrenewal of designation of individuals to inspect aircraft',
4692:'is committed to agency discretion by law and nonreviewable under a statute that allows faa to rescind such a designation',
4693:'“at any time for any reason the administrator considers appropriate”. at this point, we should emphasize that these introductory comments',
4694:'are largely oversimplified; they are intended merely to lay a foundation for a discussion of the principles that follow. 2.',
4695:'discretion is not unlimited to say that an agency has freedom of choice in a given matter does not mean',
4696:'that there are no limits to that freedom. discretion is not unbridled license. the decisions have frequently pointed out that',
4697:'discretion means legal discretion, not unlimited discretion. the point was stated as follows in 18 comp. gen. 285, 292 1938:',
4698:'“generally, the congress in making appropriations leaves largely to administrative discretion the choice of ways and means to accomplish the',
4699:'objects of the appropriation, but, of course, administrative discretion may not transcend the statutes, nor be exercised in conflict with',
4700:'law, nor for the accomplishment of purposes unauthorized by the appropriation ….” page 342 gao04261sp appropriations law—vol. i chapter 3',
4701:'agency regulations and administrative discretion see also 72 comp. gen. 310, 311 1993; 35 comp. gen. 615, 618 1956; 4',
4702:'comp. gen. 19, 20 1924; 7 comp. dec. 31 1900; 5 comp. dec. 151 1898; b253338, nov. 23, 1993; b130288,',
4703:'feb. 27, 1957; b49169, may 5, 1945; a24916, nov. 5, 1928. in lincoln v. vigil, 508 u.s. 182 1993, the',
4704:'supreme court concluded that, absent statutory elaboration, decisions about how to allocate funds within a lumpsum appropriation are committed to',
4705:'agency discretion by law. the court noted that “the very point of a lumpsum appropriation is to give an agency',
4706:'the capacity to adapt to changing circumstances and meet its statutory responsibilities in what it sees as the most effective',
4707:'or desirable way.” id. at 191. therefore, the court held that judicial review of the agency’s decision to discontinue a',
4708:'program that had been previously funded through a lumpsum appropriation was precluded. see chapter 6 for a more detailed discussion',
4709:'of the availability of appropriations. see also 55 comp. gen. 307 1975; b278121, nov. 7, 1997. discretion must be exercised',
4710:'before the obligation is incurred. approval after the fact is merely a condoning of what has already been done and',
4711:'does not constitute the exercise of discretion. 22 comp. gen. 1083 1943; 14 comp. gen. 698 1935; a57964, jan. 30,',
4712:'1935. this point should not be confused with an agency’s occasional ability to ratify an otherwise unauthorized act. see, for',
4713:'example, the discussion of quantum meruit claims in chapter 12 in volume iii of the second edition of principles of',
4714:'federal appropriations law. one way to illustrate the concept of “legal discretion” is to visualize a person standing in the',
4715:'center of a circle. the circumference of the circle represents the limits of discretion, imposed either by law or by',
4716:'the difficult to define but nonetheless real concept of “public policy.”39 the person is free to move in any direction,',
4717:'to stay near the center or to venture close to the perimeter, even to brush against it, but must stay',
4718:'within the circle. if our actor crosses the line of the circumference, he has exceeded or, to use the legal',
4719:'term, “abused” his discretion. when gao is performing its audit function, it may criticize a particular exercise of discretion as',
4720:'illconceived, inefficient, or perhaps wasteful. 39see, e.g., l’orange v. medical protective co., 394 f.2d 57 6th cir. 1968 court may',
4721:'invalidate an act as “contrary to public policy” in the sense of being “injurious to the public,” even where the',
4722:'act may not be expressly prohibited by statute. page 343 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative',
4723:'discretion from the legal standpoint, however, there is no illegal expenditure as long as the actor remains within the circle.',
4724:'we may also note that the size of the circle may vary. for example, as we will see in chapter',
4725:'14 volume iii of the third edition of principles of federal appropriations law, government corporations frequently have a broader range',
4726:'of discretion than noncorporate agencies. when congress wishes to confer discretion unrestrained by other law, its practice has been to',
4727:'include the words “notwithstanding the provisions of any other law” or similar language. 14 comp. gen. 578 1935. even this',
4728:'is not totally unfettered, however. for example, even this broad authority would not, at least as a general proposition, be',
4729:'sufficient to permit violation of the criminal laws. also, agency power to act is always bound by the constitution. short',
4730:'of an amendment to the constitution itself, no statute, however explicit, can be construed to authorize constitutional violations. in addition,',
4731:'depending on the context and circumstances, federal laws of general applicability may be found to remain applicable. see district of',
4732:'columbia federation of civic ass’ns v. volpe, 459 f.2d 1231, 1265 d.c. cir. 1971, cert. denied, 405 u.s. 1030 1972',
4733:'provision of federalaid highway act directing construction of a bridge “notwithstanding any other provision of law” did not render inapplicable',
4734:'certain federal statutes regarding protection of historic sites; b290125.2, b290125.3, dec. 18, 2002 finding that statutory directions governing certain aspects',
4735:'of an agency procurement “notwithstanding any other provision of law” do not override gao’s bid protest jurisdiction under the competition',
4736:'in contracting act. an example of a statute permitting action without regard to other laws is 50 u.s.c. § 1431,',
4737:'under which the president may authorize an agency with national defense functions to enter into or modify contracts “without regard',
4738:'to other provisions of law relating to the making, performance, amendment, or modification of contracts, whenever he deems that such',
4739:'action would facilitate the national defense.” provisions of this type are not selfexecuting but contemplate specific administrative determinations in advance',
4740:'of the proposed action. in other words, the “other provisions of law” continue to apply unless and until waived by',
4741:'an authorized official. 35 comp. gen. 545 1956. see also 22 comp. gen. 400 1942. page 344 gao04261sp appropriations law—vol.',
4742:'i chapter 3 agency regulations and administrative discretion 3. failure or refusal to exercise discretion where a particular action or',
4743:'decision is committed to agency discretion by law, the agency is under a legal duty to actually exercise that discretion.',
4744:'in one line of cases, the principle has evolved that the failure or refusal to exercise discretion committed by law',
4745:'to the agency is itself an abuse of discretion. as the following cases demonstrate, the fact of exercising discretion and',
4746:'the particular results of that exercise are two very different things. we start with a supreme court decision, work v.',
4747:'united states ex rel. rives, 267 u.s. 175 1925. that case involved section 5 of the dent act, ch. 94,',
4748:'40 stat. 1272, 1274 mar. 2, 1919, under which congress authorized the secretary of the interior to compensate a class',
4749:'of people who incurred losses in furnishing supplies or services to the government during world war i. the secretary’s determinations',
4750:'on particular claims were to be final and conclusive. the statute “was a gratuity based on equitable and moral considerations”',
4751:'id. at 181, vesting the secretary with the ultimate power to determine which losses should be compensated. the plaintiff in',
4752:'rives had sought mandamus to compel the secretary to consider and allow a claim for a specific loss incurred as',
4753:'a result of the plaintiff’s obtaining a release from a contract to buy land. the secretary had previously denied the',
4754:'claim because he had interpreted the statute as not embracing money spent on real estate. in holding that the secretary',
4755:'had done all that was required by law, the court cited and distinguished a line of cases— “in which a',
4756:'relator in mandamus has successfully sought to compel action by an officer who has discretion concededly conferred on him by',
4757:'law. the relator [plaintiff] in such cases does not ask for a decision any particular way but only that it',
4758:'be made one way or the other.” id. at 184. the secretary had made a decision on the claim, had',
4759:'articulated reasons for it, and had not exceeded the bounds of his statutory authority. that was enough. a court could',
4760:'compel the secretary to actually exercise his discretion, that is, to act on a claim one way or the other,',
4761:'but could not compel him to exercise that discretion to achieve a particular result. page 345 gao04261sp appropriations law—vol. i',
4762:'chapter 3 agency regulations and administrative discretion in simpkins v. davidson, 302 f. supp. 456 s.d. n.y. 1969, the plaintiff',
4763:'sued to compel the small business administration sba to make a loan to him. the court found that the plaintiff',
4764:'was entitled to submit an application, and to have the sba consider that application and reach a decision on whether',
4765:'or not to grant the loan. however, he had no right to the loan itself, and the court could not',
4766:'compel the sba to exercise its discretion to achieve a specific result. a very similar case on this point is',
4767:'dubrow v. small business administration, 345 f. supp. 4 c.d. cal. 1972. see also b226121o.m., feb. 9, 1988, citing and',
4768:'applying these cases. another case involved a provision of the farm and rural development act that authorized the secretary of',
4769:'agriculture to forgo foreclosure on certain delinquent loans. the plaintiffs were a group of farmers who alleged that the secretary',
4770:'had refused to consider their requests. the district court held that the secretary was required to consider the requests. matzke',
4771:'v. block, 542 f. supp. 1107 d. kans. 1982. “when discretion is vested in an administrative agency, the refusal to',
4772:'exercise that discretion is itself an abuse of discretion.” id. at 1115. the court of appeals for the tenth circuit',
4773:'affirmed that portion of the decision in matzke v. block, 732 f.2d 799 10th cir. 1984, stating at page 801:',
4774:'“the word ‘may,’ the secretary ‘may’ permit deferral, is, in our view, a reference to the discretion of the secretary',
4775:'to grant the deferral upon a showing by a borrower. it does not mean as the secretary argues that he',
4776:'has the discretion whether or not to implement the act at all and not to consider any ‘requests’ under the',
4777:'statutory standards.” the comptroller general applied these principles in 62 comp. gen. 641 1983. the military personnel and civilian employees’',
4778:'claims act of 1964, 31 u.s.c. § 3721, gives agencies discretionary authority to consider and settle certain employee personal property',
4779:'claims. an agency asked whether it had discretion to adopt a policy of refusing all claims submitted to it under',
4780:'the act. no, the concept of administrative discretion does not extend that far, replied the comptroller. while gao would not',
4781:'purport to tell another agency which claims it should or should not consider—that part was discretionary—the decision noted that “a',
4782:'blanket refusal to consider all claims is, in our opinion, not the exercise of discretion” id. at 643, and held',
4783:'“that an agency has the duty to actually exercise its discretion and that this duty is not satisfied by a',
4784:'policy of refusing to consider all claims” id. at 645. thus, for example, an agency would be within its discretion',
4785:'to make and announce a policy decision not to consider claims of certain page 346 gao04261sp appropriations law—vol. i chapter',
4786:'3 agency regulations and administrative discretion types, such as claims for stolen cash, or to impose monetary ceilings on certain',
4787:'types of property, or to establish a minimum amount for the filing of claims. what it cannot do is disregard',
4788:'the statute in its entirety. additional cases illustrating this concept are california v. settle, 708 f.2d 1380 9th cir. 1983;',
4789:'rockbridge v. lincoln, 449 f.2d 567 9th cir. 1971; and jacoby v. schuman, 568 f. supp. 843 e.d. mo. 1983.',
4790:'several other cases, however, have suggested that the refusal of an agency to consider the exercise of its discretion will',
4791:'be subject to judicial review only where that refusal stems from a legal error by the agency e.g., the agency',
4792:'wrongly concludes that it lacks jurisdiction or authority to exercise discretion or where its refusal to exercise discretion can be',
4793:'tied to a statutory or constitutional violation. see immigration & naturalization service v. st. cyr, 533 u.s. 289, 307 2001;',
4794:'gutierrezchavez v. immigration & naturalization service, 298 f.3d 824 9th cir. 2002; byrd v. moore, 252 f. supp. 2d 293',
4795:'w.d. n.c. 2003. 4. regulations may limit discretion by issuing regulations, an agency may voluntarily and perhaps even inadvertently limit',
4796:'its own discretion. a number of cases have held that an agency must comply with its own regulations, even if',
4797:'the action is discretionary by statute. the leading case is united states ex rel. accardi v. shaughnessy, 347 u.s. 260',
4798:'1954. the attorney general had been given statutory discretion to suspend the deportation of aliens under certain circumstances, and had,',
4799:'by regulation, given this discretion to the board of immigration appeals. the supreme court held that, regardless of what the',
4800:'situation would have been if the regulations did not exist, the board was required under the regulations to exercise its',
4801:'own judgment, and it was improper for the attorney general to attempt to influence that judgment, in this case, by',
4802:'issuing a list of “unsavory characters” he wanted to have deported. “in short, as long as the regulations remain operative,',
4803:'the attorney general denies himself the right to sidestep the board or dictate its decision in any manner.” id. at',
4804:'267. of course, the attorney general could always amend his regulations, but an amendment could operate prospectively only. awards under',
4805:'the government employees incentive awards act, 5 u.s.c. §§ 4501–4507, as we will discuss in chapter 4, are wholly discretionary.',
4806:'in a 1982 decision, gao reviewed army regulations which provided that “awards will be granted” if certain specified criteria were',
4807:'met, and noted page 347 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion that the army had',
4808:'circumscribed its own discretion by committing itself to make an award if those conditions were met. b202039, may 7, 1982.',
4809:'reviewing air force regulations under similar legislation applicable to military personnel, the court of claims noted in griffin v. united',
4810:'states, 215 ct. cl. 710, 714 1978: “thus, we think that the secretary may have originally had uncontrolled and unreviewable',
4811:'discretion … but as he published procedures and guidelines, as he received responsive suggestions, as he implemented them and through',
4812:'his subordinates passed upon compensation claims, we think by his choices he surrendered some of his discretion, and the legal',
4813:'possibility of abuse of discretion came into the picture.” another group of cases in this category are those, previously noted',
4814:'in section a.1 of this chapter, in which an agency has waived an exemption from the apa and was held',
4815:'bound by that waiver. for additional authority on the proposition that an agency can, by regulation, restrict otherwise discretionary action,',
4816:'see united states v. nixon, 418 u.s. 683 1974; vitarelli v. seaton, 359 u.s. 535 1959; service v. dulles, 354',
4817:'u.s. 363 1957; united states v. morgan, 193 f.3d 252 4th cir. 1999; clarry v. united states, 85 f.3d 1041',
4818:'2nd cir. 1996; waldron v. immigration & naturalization service, 17 f.3d 511, 519 2nd cir. 1994; montilla v. immigration &',
4819:'naturalization service, 926 f.2d 162 2nd cir. 1991; 67 comp. gen. 471 1988. recent case law has recognized a number',
4820:'of limits, caveats, and nuances to the accardi doctrine. while there are occasional exceptions, the doctrine generally will not be',
4821:'applied to bind an agency by its informal rules, policies, or other issuances that the court concludes are intended to',
4822:'provide internal guidance rather than to confer rights or benefits on the public. see farrell v. department of the interior,',
4823:'314 f.3d 584, 591 fed. cir. 2002 holding that agency statement that was not formally promulgated is not binding on',
4824:'the agency unless the agency intended to be bound by it. even if a court concludes that a rule, or',
4825:'policy document, is binding on the agency under accardi, the court may not invalidate the agency action if it concludes',
4826:'that the departure from the rule was nonprejudicial or “harmless error.” see wilkinson v. legal services corp., 27 f. supp.',
4827:'2d 32 d.d.c. 1998. in addition, the courts are very reluctant to apply accardi to criminal proceedings or exercises of',
4828:'prosecutorialtype discretion such as page 348 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion an agency decision',
4829:'not to initiate an enforcement action. see carranza v. immigration & naturalization service, 277 f.3d 65, 68 1st cir. 2002;',
4830:'united states v. lee, 274 f.3d 485 8th cir. 2001; united states v. shakir, 113 f. supp. 2d 1182 m.d.',
4831:'tenn. 2000; united states v. briscoe, 69 f. supp. 2d 738, 747 d. v.i. 1999, aff’d, 234 f.3d 1266 3rd',
4832:'cir. 2000; nichols v. reno, 931 f. supp. 748 d. colo. 1996; walker v. reno, 925 f. supp. 124 n.d.',
4833:'n.y. 1995. 5. insufficient funds congress occasionally legislates in such a manner as to restrict its own subsequent funding options.',
4834:'an example is contract authority, described in chapter 2. another example is entitlement legislation not contingent upon the availability of',
4835:'appropriations. a wellknown example here is social security benefits. where legislation creates, or authorizes the administrative creation of, binding legal',
4836:'obligations without regard to the availability of appropriations, a funding shortfall may delay actual payment but does not authorize the',
4837:'administering agency to alter or reduce the “entitlement.” in the far more typical situation, however, congress merely enacts a program',
4838:'and authorizes appropriations. for any number of reasons— budgetary constraints, changes in political climate, etc.—the actual funding may fall short',
4839:'of original expectations. what is an agency to do when it finds that it does not have enough money to',
4840:'accommodate an entire class of beneficiaries? obviously, it can ask congress for more. however, as any program administrator knows, asking',
4841:'and getting are two different things. if the agency cannot get additional funding and the program legislation fails to provide',
4842:'guidance, there is solid authority for the proposition that the agency may, within its discretion, establish reasonable classifications, priorities, and/or',
4843:'eligibility requirements, as long as it does so on a rational and consistent basis.40 the concept was explained by the',
4844:'supreme court in morton v. ruiz, 415 u.s. 199, 230–31 1974, a case involving an assistance program administered by the',
4845:'bureau of indian affairs bia: 40 even under an entitlement program, an agency could presumably meet a funding shortfall by',
4846:'such measures as making prorated payments, but such actions would be only temporary pending receipt of sufficient funds to honor',
4847:'the underlying obligation. the recipient would remain legally entitled to the balance. page 349 gao04261sp appropriations law—vol. i chapter 3',
4848:'agency regulations and administrative discretion “[i]t does not necessarily follow that the secretary is without power to create reasonable classifications',
4849:'and eligibility requirements in order to allocate the limited funds available to him for this purpose. [citations omitted.] thus, if',
4850:'there were only enough funds appropriated to provide meaningfully for 10,000 needy indian beneficiaries and the entire class of eligible',
4851:'beneficiaries numbered 20,000, it would be incumbent upon the bia to develop an eligibility standard to deal with this problem,',
4852:'and the standard, if rational and proper, might leave some of the class otherwise encompassed by the appropriation without benefits.',
4853:'but in such a case the agency must, at a minimum, let the standard be generally known so as to',
4854:'assure that it is being applied consistently and so as to avoid both the reality and the appearance of arbitrary',
4855:'denial of benefits to potential beneficiaries.” in suwannee river finance, inc. v. united states, 7 cl. ct. 556 1985, the',
4856:'plaintiff sued for construction differential subsidy payments under the merchant marine act, administered by the maritime administration marad. in response',
4857:'to a sudden and severe budget reduction, marad had cut off all subsidies for nonessential changes after a specified date,',
4858:'and had notified the plaintiff to that effect. noting that “[a]fter this budget cut, marad obviously could no longer be',
4859:'as generous in paying subsidies as it had been before,” the court held marad’s approach to be “a logical, effective',
4860:'and timehonored method for allocating the burdens of shrinking resources” and well within its administrative discretion. id. at 561. another',
4861:'illustration is ramah navajo school board v. babbitt, 87 f.3d 1338 d.c. cir. 1996, concerning the secretary of the interior’s',
4862:'allocation of funds to indian tribes where an appropriations shortfall prevented the full allocation contemplated by the authorizing statute. the',
4863:'court held that the secretary’s determination of how to allocate funds in the face of a funding shortfall was subject',
4864:'to judicial review, reversing the district court’s opinion that had relied on lincoln v. vigil, and that the secretary had',
4865:'exceeded his statutory authority. for additional case law on this point, see cherokee nation of oklahoma v. thompson, 311 f.3d',
4866:'1054 10th cir. 2002; shoshonebannock tribes of the fort hall reservation v. secretary, department of health & human services, 279',
4867:'f.3d 660 9th cir. 2002; babbitt v. oglala sioux tribal public safety department, 194 f.3d 1374 fed. cir. 1999. page',
4868:'350 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative discretion an illustration from the comptroller general’s decisions is',
4869:'b202568, sept. 11, 1981. due to a severe drought in the summer of 1980, the small business administration sba found',
4870:'that its appropriation was not sufficient to meet demand under the sba’s disaster loan program. rather than treating applicants on',
4871:'a “first come, first served” basis, sba amended its regulations to impose several new restrictions, including a ceiling of 60',
4872:'percent of actual physical loss. gao reviewed sba’s actions and found them completely within the agency’s administrative discretion. in a',
4873:'1958 case, congress had, by statute, directed the interior department to transfer $2.5 million from one appropriation to another. congress',
4874:'had apparently been under the impression that the “donor” account contained a sufficient unobligated balance. the donor account in fact',
4875:'had ample funds if both obligated and unobligated funds were counted, but had an unobligated balance of only $1.3 million.',
4876:'the interior department was in an impossible position. it could not liquidate obligations in both accounts. if it transferred the',
4877:'full $2.5 million, some valid obligations under the donor appropriation would have to wait; if it transferred only the unobligated',
4878:'balance, it could not satisfy the entire obligation under the receiving account. first, gao advised that the transfer would not',
4879:'violate the antideficiency act 31 u.s.c. § 1341 since it was not only authorized but directed by statute. as to',
4880:'which obligation should be liquidated first—that is, which could be paid immediately and which would have to await a supplemental',
4881:'appropriation—the best answer gao could give was that “the question is primarily for determination administratively.” in other words, there was',
4882:'no legally mandated priority, and all the agency could do was use its best judgment. gao added, however, that it',
4883:'might be a good idea to first seek some form of congressional clarification. 38 comp. gen. 93 1958. an early',
4884:'case, 22 comp. dec. 37 1915, considered the concept of prorating. congress had appropriated a specific sum for the payment',
4885:'of a designated class of claims against the interior department. when all claims were filed and determined, the total amount',
4886:'of the allowed claims exceeded the amount of the appropriation. the question was whether the amount appropriated could be prorated',
4887:'among the claimants. the comptroller of the treasury declined to approve the prorating, concluding that “action should be suspended until',
4888:'congress shall declare its wishes by directing a pro rata payment …or by appropriating the additional amount necessary to full',
4889:'payment.” id. at 40. if the decision was saying merely that the agency should attempt to secure additional funds—or at',
4890:'least explore the possibility—before taking administrative action that would page 351 gao04261sp appropriations law—vol. i chapter 3 agency regulations and',
4891:'administrative discretion reduce payments to individual claimants, then it is consistent with the more recent case law and remains valid',
4892:'to that extent. if, however, it was suggesting that the agency lacked authority to prorate without specific congressional sanction, then',
4893:'it is clearly superseded by morton v. ruiz and the other cases previously cited. there is no apparent reason why',
4894:'prorating should not be one of the discretionary options available to the agency along with the other options discussed in',
4895:'the various cases. it has one advantage in that each claimant will receive at least something. a conceptually related situation',
4896:'is a funding shortfall in an appropriation used to fund a number of programs. again, the agency must allocate its',
4897:'available funds in some reasonable fashion. mandatory programs take precedence over discretionary ones.41 within the group of mandatory programs, more',
4898:'specific requirements should be funded first, such as those with specific time schedules, with remaining funds then applied to the',
4899:'more general requirements. b159993, sept. 1, 1977; b177806, feb. 24, 1978 nondecision letter. these principles apply equally, of course, to',
4900:'the allocation of funds between mandatory and nonmandatory expenditures within a singleprogram appropriation. e.g., 61 comp. gen. 661, 664 1982.',
4901:'other cases recognizing an agency’s discretion in coping with funding shortfalls are city of los angeles v. adams, 556 f.2d',
4902:'40, 49–50 d.c. cir. 1977, and mccarey v. mcnamara, 390 f.2d 601 3rd cir. 1968. 41 a “mandatory program,” as',
4903:'we use the term here, should not be confused with the entitlement programs previously noted. a mandatory program is simply',
4904:'one that congress directs rather than merely authorizes the agency to conduct, but within the limits of available funding. entitlement',
4905:'programs would take precedence over these mandatory programs. page 352 gao04261sp appropriations law—vol. i chapter 3 agency regulations and administrative',
4906:'discretion page 353 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose a. general principles . . . .',
4907:'. . . . . . . . . . . . . . . . . . . .',
4908:'. . . . . . . . . . . . 46 1. introduction: 31 u.s.c. § 1301a .',
4909:'. . . . . . . . . . . . . . . . . . . .',
4910:'. . . . . .46 2. determining authorized purposes . . . . . . . . . .',
4911:'. . . . . . . . . . . . . . . .49 a. statement of purpose',
4912:'. . . . . . . . . . . . . . . . . . . .',
4913:'. . . . . . . . . . . . . . .49 b. specific purpose stated in',
4914:'appropriation act . . . . . . . . . . . . . 411 3. new or additional',
4915:'duties . . . . . . . . . . . . . . . . . . .',
4916:'. . . . . . . . . . . . .414 4. termination of program . . .',
4917:'. . . . . . . . . . . . . . . . . . . .',
4918:'. . . . . . . . . . .417 a.termination desired . . . . . . .',
4919:'. . . . . . . . . . . . . . . . . . . .',
4920:'. . . . . . .417 b.reauthorization pending . . . . . . . . . . .',
4921:'. . . . . . . . . . . . . . . . . . . .418',
4922:'b. the “necessary expense” doctrine . . . . . . . . . . . . . . .',
4923:'. . . . 419 1. the theory . . . . . . . . . . . .',
4924:'. . . . . . . . . . . . . . . . . . . .',
4925:'. . . . . . . . . . . . .419 a.relationship to the appropriation . . .',
4926:'. . . . . . . . . . . . . . . . . . . .422',
4927:'b.expenditure otherwise prohibited . . . . . . . . . . . . . . . . .',
4928:'. . . . .427 c.expenditure otherwise provided for . . . . . . . . . . .',
4929:'. . . . . . . . .429 2. general operating expenses . . . . . . .',
4930:'. . . . . . . . . . . . . . . . . . . .',
4931:'. . .430 a.training . . . . . . . . . . . . . . . .',
4932:'. . . . . . . . . . . . . . . . . . . .',
4933:'. . . . . . . . .430 b.travel . . . . . . . . . .',
4934:'. . . . . . . . . . . . . . . . . . . .',
4935:'. . . . . . . . . . . . . . . . .431 c. postage expenses',
4936:'. . . . . . . . . . . . . . . . . . . .',
4937:'. . . . . . . . . . . . . . . . .432 d.books and periodicals',
4938:'. . . . . . . . . . . . . . . . . . . .',
4939:'. . . . . . . . . . . . .433 e. miscellaneous items incident to the federal',
4940:'workplace . . . . 433 c. specific purpose authorities and limitations . . . . . . . .',
4941:'. 435 1. introduction . . . . . . . . . . . . . . . .',
4942:'. . . . . . . . . . . . . . . . . . . .',
4943:'. . . . . . . .435 2. attendance at meetings and conventions . . . . . .',
4944:'. . . . . . . . . . . . .436 a.government employees . . . . .',
4945:'. . . . . . . . . . . . . . . . . . . .',
4946:'. . . . . .437 1statutory framework . . . . . . . . . . . .',
4947:'. . . . . . . . . . . . . . . . . . 437 2inability',
4948:'to attend . . . . . . . . . . . . . . . . . .',
4949:'. . . . . . . . . . . . . . . 440 3federally sponsored meetings .',
4950:'. . . . . . . . . . . . . . . . . . . .',
4951:'. 441 4rental of space in district of columbia . . . . . . . . . . .',
4952:'. . . 442 5military personnel . . . . . . . . . . . . . .',
4953:'. . . . . . . . . . . . . . . . . . 443 b.nongovernment',
4954:'personnel . . . . . . . . . . . . . . . . . . .',
4955:'. . . . . . . . . .444 131 u.s.c. § 1345 . . . . . .',
4956:'. . . . . . . . . . . . . . . . . . . .',
4957:'. . . . . . . . 444 2invitational travel . . . . . . . . .',
4958:'. . . . . . . . . . . . . . . . . . . .',
4959:'. . . . 447 3use of grant funds . . . . . . . . . . .',
4960:'. . . . . . . . . . . . . . . . . . . .',
4961:'. 450 3. attorney’s fees . . . . . . . . . . . . . . .',
4962:'. . . . . . . . . . . . . . . . . . . .',
4963:'. . . . . .451 a.introduction . . . . . . . . . . . . .',
4964:'. . . . . . . . . . . . . . . . . . . .',
4965:'. . . . . . . .451 b. hiring of attorneys by government agencies . . . . .',
4966:'. . . . . . . . 452 c. suits against government officers and employees . . . .',
4967:'. . . . 455 d.suits unrelated to federal employees . . . . . . . . . .',
4968:'. . . . . . . . .467 e.claims by federal employees . . . . . . .',
4969:'. . . . . . . . . . . . . . . . . . .468 1discrimination',
4970:'proceedings . . . . . . . . . . . . . . . . . . .',
4971:'. . . . . 468 2other employee claims . . . . . . . . . . .',
4972:'. . . . . . . . . . . . . . . . . 470 f. criminal',
4973:'justice act . . . . . . . . . . . . . . . . . .',
4974:'. . . . . . . . . . . . . . . . .474 page 41 gao04261sp',
4975:'appropriations law—vol. i chapter 4 availability of appropriations: purpose 1types of actions covered . . . . . . .',
4976:'. . . . . . . . . . . . . . . . . . . 475',
4977:'2miscellaneous cases . . . . . . . . . . . . . . . . . .',
4978:'. . . . . . . . . . . . 476 g.equal access to justice act . .',
4979:'. . . . . . . . . . . . . . . . . . . .',
4980:'. . . . . .477 h. contract matters . . . . . . . . . . .',
4981:'. . . . . . . . . . . . . . . . . . . .',
4982:'. . . . . . .482 1bid protests . . . . . . . . . . .',
4983:'. . . . . . . . . . . . . . . . . . . .',
4984:'. . . . . . . 482 2contract disputes . . . . . . . . . .',
4985:'. . . . . . . . . . . . . . . . . . . .',
4986:'. . . 484 i. public participation in administrative proceedings: funding of intervenors . . . . . . .',
4987:'. . . . . . . . . . . . . . . . . . . .',
4988:'. . . . . . . . . . . . .485 4. compensation restrictions . . . .',
4989:'. . . . . . . . . . . . . . . . . . . .',
4990:'. . . . . . .492 a.dual compensation . . . . . . . . . . .',
4991:'. . . . . . . . . . . . . . . . . . . .',
4992:'. . . .493 b.employment of aliens . . . . . . . . . . . . .',
4993:'. . . . . . . . . . . . . . . . . . . .493',
4994:'c.forfeiture of annuities and retired pay . . . . . . . . . . . . . .',
4995:'. . . .496 1general principles . . . . . . . . . . . . . .',
4996:'. . . . . . . . . . . . . . . . . . 496 2the',
4997:'alger hiss case . . . . . . . . . . . . . . . . .',
4998:'. . . . . . . . . . . . . . 497 3types of offenses covered .',
4999:'. . . . . . . . . . . . . . . . . . . .',
5000:'. . . . 498 4related statutory provisions . . . . . . . . . . . .',
5001:'. . . . . . . . . . . 499 5. entertainment—recreation—morale and welfare . . . .',
5002:'. . . . . . 4100 a.introduction . . . . . . . . . . . .',
5003:'. . . . . . . . . . . . . . . . . . . .',
5004:'. . . . . . . .4100 1application of the rule . . . . . . . .',
5005:'. . . . . . . . . . . . . . . . . . . 4101',
5006:'2what is entertainment? . . . . . . . . . . . . . . . . .',
5007:'. . . . . . . . . . 4102 b.food for government employees . . . . .',
5008:'. . . . . . . . . . . . . . . . .4103 1 working at',
5009:'official duty station under unusual conditions . . . . . . . . . . . . . .',
5010:'. . . . . . . . . . . . . . . . . . . .',
5011:'. . . . 4104 2 government employees training act . . . . . . . . . .',
5012:'. . . . . 4107 3award ceremonies . . . . . . . . . . . .',
5013:'. . . . . . . . . . . . . . . . . . . 4116',
5014:'4cafeterias and lunch facilities . . . . . . . . . . . . . . . .',
5015:'. . . . . 4119 c. entertainment for government employees other than food . . . . . .',
5016:'. . . . . . . . . . . . . . . . . . . .',
5017:'. . . . . . . . . . . . . . . . . . . .',
5018:'.4120 1miscellaneous cases . . . . . . . . . . . . . . . . .',
5019:'. . . . . . . . . . . . 4120 2cultural awareness programs . . . .',
5020:'. . . . . . . . . . . . . . . . . 4120 d. entertainment',
5021:'of nongovernment personnel . . . . . . . . . . . . . 4123 e. recreational and',
5022:'welfare facilities for government personnel . . . . . . . . . . . . . . .',
5023:'. . . . . . . . . . . . . . . . . . . .',
5024:'. . . . . . . .4126 1 the rules: older cases and modern trends . . . .',
5025:'. . . . . . . 4126 2child care . . . . . . . . . .',
5026:'. . . . . . . . . . . . . . . . . . . .',
5027:'. . . . . . . . 4130 f. reception and representation funds . . . . . .',
5028:'. . . . . . . . . . . . .4135 6. fines and penalties . . .',
5029:'. . . . . . . . . . . . . . . . . . . .',
5030:'. . . . . . . . . . . . . .4140 7. firefighting and other municipal services',
5031:'. . . . . . . . . . . . . . . . . 4146 a. firefighting',
5032:'services: availability of appropriations . . . . . . 4146 b. federal fire prevention and control act of 1974',
5033:'. . . . . . . . . 4150 c.other municipal services . . . . . . .',
5034:'. . . . . . . . . . . . . . . . . . . .',
5035:'. .4151 8. gifts and awards . . . . . . . . . . . . . .',
5036:'. . . . . . . . . . . . . . . . . . . .',
5037:'. . . . .4155 page 42 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose a.gifts . .',
5038:'. . . . . . . . . . . . . . . . . . . .',
5039:'. . . . . . . . . . . . . . . . . . . .',
5040:'. . . . .4155 b.contests . . . . . . . . . . . . . .',
5041:'. . . . . . . . . . . . . . . . . . . .',
5042:'. . . . . . . . . .4161 1entry fees . . . . . . . .',
5043:'. . . . . . . . . . . . . . . . . . . .',
5044:'. . . . . . . . . . 4161 2governmentsponsored contests . . . . . . .',
5045:'. . . . . . . . . . . . 4162 c. awards . . . . .',
5046:'. . . . . . . . . . . . . . . . . . . .',
5047:'. . . . . . . . . . . . . . . . . . . .4164',
5048:'9. guard services: antipinkerton act . . . . . . . . . . . . . . .',
5049:'. . . . . . . .4171 a. evolution of the law prior to 57 comp. gen. 524 .',
5050:'. . . . . . . . 4171 b. 57 comp. gen. 524 and the present state of the',
5051:'law . . . . . . 4174 10. insurance . . . . . . . . . .',
5052:'. . . . . . . . . . . . . . . . . . . .',
5053:'. . . . . . . . . . . . . . .4175 a. the selfinsurance rule .',
5054:'. . . . . . . . . . . . . . . . . . . .',
5055:'. . . . . . . . . .4175 b.exceptions to the rule . . . . . .',
5056:'. . . . . . . . . . . . . . . . . . . .',
5057:'. . . . .4179 1 departments and agencies generally . . . . . . . . . .',
5058:'. . . . . . 4179 2government corporations . . . . . . . . . . .',
5059:'. . . . . . . . . . . . . . 4183 c. specific areas of concern',
5060:'. . . . . . . . . . . . . . . . . . . .',
5061:'. . . . . . . . .4183 1 property owned by government contractors . . . . .',
5062:'. . . . 4183 2use of motor vehicles . . . . . . . . . . .',
5063:'. . . . . . . . . . . . . . . . . 4184 3losses in',
5064:'shipment . . . . . . . . . . . . . . . . . . .',
5065:'. . . . . . . . . . . 4186 4bonding of government personnel . . . .',
5066:'. . . . . . . . . . . . . 4187 11. lobbying and related matters .',
5067:'. . . . . . . . . . . . . . . . . . . .',
5068:'. . . . . .4188 a.introduction . . . . . . . . . . . . .',
5069:'. . . . . . . . . . . . . . . . . . . .',
5070:'. . . . . . .4188 b.penal statutes . . . . . . . . . . .',
5071:'. . . . . . . . . . . . . . . . . . . .',
5072:'. . . . . . . .4189 c.appropriation act restrictions . . . . . . . . .',
5073:'. . . . . . . . . . . . . . .4196 1origin and general considerations .',
5074:'. . . . . . . . . . . . . . . . . 4196 2selfaggrandizement .',
5075:'. . . . . . . . . . . . . . . . . . . .',
5076:'. . . . . . . . 4199 3covert propaganda . . . . . . . . .',
5077:'. . . . . . . . . . . . . . . . . . . .',
5078:'. 4202 4pending legislation: overview . . . . . . . . . . . . . . .',
5079:'. . . . . . 4203 5 cases involving “grassroots” lobbying violations . . . . . 4207 6',
5080:'pending legislation: cases in which no violation was f ound . . . . . . . . . .',
5081:'. . . . . . . . . . . . . . . . . . . .',
5082:'. . . . . . . . . . . . . 4210 7 pending legislation: providing assistance to',
5083:'private lobbying groups . . . . . . . . . . . . . . . . .',
5084:'. . . . . . . . . . . . . . . . 4213 8 promotion of',
5085:'legislative proposals: prohibited activity short of grass roots lobbying . . . . . . . . . . .',
5086:'. . . . . . . . . . . 4215 9 dissemination of political or misleading information .',
5087:'4218 d.lobbying with grant funds . . . . . . . . . . . . . . .',
5088:'. . . . . . . . . . . .4219 e. informational activities . . . . .',
5089:'. . . . . . . . . . . . . . . . . . . .',
5090:'. . . . . .4227 f. advertising and the employment of publicity experts . . . . . 4229',
5091:'1commercial advertising . . . . . . . . . . . . . . . . . .',
5092:'. . . . . . . . 4229 2 advertising of government programs, products, or services . . .',
5093:'. . . . . . . . . . . . . . . . . . . .',
5094:'. . . . . . . . . . . . . . . . . 4230 3publicity experts',
5095:'. . . . . . . . . . . . . . . . . . . .',
5096:'. . . . . . . . . . . . 4232 12. membership fees . . . .',
5097:'. . . . . . . . . . . . . . . . . . . .',
5098:'. . . . . . . . . . . . . .4234 page 43 gao04261sp appropriations law—vol. i',
5099:'chapter 4 availability of appropriations: purpose a. 5 u.s.c. § 5946 . . . . . . . . .',
5100:'. . . . . . . . . . . . . . . . . . . .',
5101:'. . . . . . . . . .4234 b.attorneys . . . . . . . . .',
5102:'. . . . . . . . . . . . . . . . . . . .',
5103:'. . . . . . . . . . . . . .4240 13. personal expenses and furnishings .',
5104:'. . . . . . . . . . . . . . . . . . . .',
5105:'.4242 a.introduction . . . . . . . . . . . . . . . . . .',
5106:'. . . . . . . . . . . . . . . . . . . .',
5107:'. .4242 b.business or calling cards . . . . . . . . . . . . . .',
5108:'. . . . . . . . . . . . . . .4243 c.health, medical care and treatment',
5109:'. . . . . . . . . . . . . . . . . . . .4245',
5110:'1medical care . . . . . . . . . . . . . . . . . .',
5111:'. . . . . . . . . . . . . . . . . . 4245 2purchase',
5112:'of healthrelated items . . . . . . . . . . . . . . . . .',
5113:'. . 4250 3the rehabilitation act . . . . . . . . . . . . . .',
5114:'. . . . . . . . . . . . . 4253 d.office furnishings decorative items . .',
5115:'. . . . . . . . . . . . . . . .4256 e.personal qualification expenses .',
5116:'. . . . . . . . . . . . . . . . . . . .',
5117:'. .4258 f. photographs . . . . . . . . . . . . . . . .',
5118:'. . . . . . . . . . . . . . . . . . . .',
5119:'. . . .4261 g. seasonal greeting cards and decorations . . . . . . . . . .',
5120:'. . . . . 4262 1greeting cards . . . . . . . . . . . .',
5121:'. . . . . . . . . . . . . . . . . . . .',
5122:'. . 4262 2seasonal decorations . . . . . . . . . . . . . . .',
5123:'. . . . . . . . . . . . . . 4263 h.traditional ceremonies . . .',
5124:'. . . . . . . . . . . . . . . . . . . .',
5125:'. . . . . . . .4263 i. wearing apparel . . . . . . . . .',
5126:'. . . . . . . . . . . . . . . . . . . .',
5127:'. . . . . . . .4265 j. miscellaneous personal expenses . . . . . . . .',
5128:'. . . . . . . . . . . . . .4271 1commuting and parking . . .',
5129:'. . . . . . . . . . . . . . . . . . . .',
5130:'. . . 4271 2flexiplace . . . . . . . . . . . . . . .',
5131:'. . . . . . . . . . . . . . . . . . . .',
5132:'. . . 4273 3miscellaneous employee expenses . . . . . . . . . . . . .',
5133:'. . . . 4274 14. rewards . . . . . . . . . . . . .',
5134:'. . . . . . . . . . . . . . . . . . . .',
5135:'. . . . . . . . . . . . .4276 a.rewards to informers . . . .',
5136:'. . . . . . . . . . . . . . . . . . . .',
5137:'. . . . . . . .4276 1reward as “necessary expense” . . . . . . . .',
5138:'. . . . . . . . . . . . 4276 2 payments to informers: internal revenue service',
5139:'. . . . 4278 3 payments to informers: customs service . . . . . . . . .',
5140:'. . . 4280 b.missing government employees . . . . . . . . . . . . .',
5141:'. . . . . . . . . .4281 c. lost ormissing government property . . . . .',
5142:'. . . . . . . . . . . . . .4282 d.contractual basis . . . .',
5143:'. . . . . . . . . . . . . . . . . . . .',
5144:'. . . . . . . . . . . .4283 e.rewards to government employees . . . .',
5145:'. . . . . . . . . . . . . . . .4285 15. state and local',
5146:'taxes . . . . . . . . . . . . . . . . . . .',
5147:'. . . . . . . . . . . . . . . .4286 a.introduction . . .',
5148:'. . . . . . . . . . . . . . . . . . . .',
5149:'. . . . . . . . . . . . . . . . .4286 b. tax on',
5150:'business transactions where the federal government is a party . . . . . . . . . . .',
5151:'. . . . . . . . . . . . . . . . . . . .',
5152:'. . . . . . . . . . . .4289 1general principles . . . . . .',
5153:'. . . . . . . . . . . . . . . . . . . .',
5154:'. . . . . 4289 2public utilities . . . . . . . . . . . .',
5155:'. . . . . . . . . . . . . . . . . . . .',
5156:'. . . 4295 c.propertyrelated taxes . . . . . . . . . . . . . .',
5157:'. . . . . . . . . . . . . . . . .4296 d.taxes paid by',
5158:'federal employees . . . . . . . . . . . . . . . . . .',
5159:'. . . .4301 1parking taxes . . . . . . . . . . . . . .',
5160:'. . . . . . . . . . . . . . . . . . . .',
5161:'. 4302 2hotel and meal taxes . . . . . . . . . . . . . .',
5162:'. . . . . . . . . . . . . . . 4303 3tolls . . .',
5163:'. . . . . . . . . . . . . . . . . . . .',
5164:'. . . . . . . . . . . . . . . . . . . .',
5165:'4305 4 state and local income withholding taxes . . . . . . . . . . . 4306',
5166:'page 44 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose 5possessory interest taxes . . . . .',
5167:'. . . . . . . . . . . . . . . . . . . .',
5168:'4306 6occupational license fees . . . . . . . . . . . . . . . .',
5169:'. . . . . . . . . 4306 e. refund and recovery of tax improperly paid . .',
5170:'. . . . . . . . . . 4307 16. telephone services . . . . . .',
5171:'. . . . . . . . . . . . . . . . . . . .',
5172:'. . . . . . . . . . .4308 a. telephone service to private residences . . .',
5173:'. . . . . . . . . . . . . 4308 1 the statutory prohibition and its',
5174:'major exception . . . . 4308 2funds to which the statute applies . . . . . . .',
5175:'. . . . . . . . . . 4310 3what is a private residence? . . . .',
5176:'. . . . . . . . . . . . . . . . . . . 4311',
5177:'4application of the general rule . . . . . . . . . . . . . . .',
5178:'. . . . . . 4312 5exceptions . . . . . . . . . . . .',
5179:'. . . . . . . . . . . . . . . . . . . .',
5180:'. . . . . 4314 b.longdistance calls . . . . . . . . . . . .',
5181:'. . . . . . . . . . . . . . . . . . . .',
5182:'. .4319 c. mobile or cellular phones . . . . . . . . . . . . .',
5183:'. . . . . . . . . . . . . . . .4319 page 45 gao04261sp appropriations',
5184:'law—vol. i chapter 4 availability of appropriations: purpose a. general principles 1. introduction: 31 u.s.c. § 1301a this chapter introduces',
5185:'the concept of the “availability” of appropriations. the decisions are often stated in terms of whether appropriated funds are or',
5186:'are not “legally available” for a given obligation or expenditure. this is simply another way of saying that a given',
5187:'item is or is not a legal expenditure. whether appropriated funds are legally available for something depends on three things:',
5188:'1. the purpose of the obligation or expenditure must be authorized; 2. the obligation must occur within the time limits',
5189:'applicable to the appropriation; and 3. the obligation and expenditure must be within the amounts congress has established. thus, there',
5190:'are three elements to the concept of availability: purpose, time, and amount. all three must be observed for the obligation',
5191:'or expenditure to be legal. availability as to time and amount will be covered in chapters 5 and 6. this',
5192:'chapter discusses availability as to purpose. one of the fundamental statutes dealing with the use of appropriated funds is 31',
5193:'u.s.c. § 1301a: “appropriations shall be applied only to the objects for which the appropriations were made except as otherwise',
5194:'provided by law.” simple, concise, and direct, this statute was originally enacted in 1809 ch. 28, § 1, 2 stat.',
5195:'535, mar. 3, 1809 and is one of the cornerstones of congressional control over the federal purse. because money cannot',
5196:'be paid from the treasury except under an appropriation u.s. const. art. i, § 9, cl. 7, and because an',
5197:'appropriation must be derived from an act of congress, it is for congress to determine the purposes for which an',
5198:'appropriation may be used. simply stated, 31 u.s.c. § 1301a says that public funds may be used only for the',
5199:'purpose or purposes for which they were appropriated. it prohibits charging authorized items to the wrong appropriation, and unauthorized items',
5200:'to any appropriation. anything less page 46 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose would render congressional',
5201:'control largely meaningless. an earlier treasury comptroller was of the opinion that the statute did not make any new law,',
5202:'but merely codified what was already required under the appropriations clause of the constitution. 4 lawrence, first comp. dec. 137,',
5203:'142 1883. administrative applications of the purpose statute can be traced back almost to the time the statute was enacted.',
5204:'see, for example, 36 comp. gen. 621, 622 1957, which quotes part of a decision dated february 21, 1821. in',
5205:'an 1898 decision captioned “misapplication of appropriations,” the comptroller of the treasury talked about 31 u.s.c. § 1301a in these',
5206:'terms: “it is difficult to see how a legislative prohibition could be expressed in stronger terms. the law is plain,',
5207:'and any disbursing officer disregards it at his peril.” 4 comp. dec. 569, 570 1898. the starting point in applying',
5208:'31 u.s.c. § 1301a is that, absent a clear indication to the contrary, the common meaning of the words in',
5209:'the appropriation act and the program legislation it funds governs the purposes to which the appropriation may be applied. to',
5210:'illustrate, the comptroller general held in 41 comp. gen. 255 1961 that an appropriation available for the “replacement” of state',
5211:'roads damaged by nearby federal dam construction could be used only to restore those roads to their former condition, not',
5212:'for improvements such as widening. similarly, funds provided for the modification of existing dams for safety purposes could not be',
5213:'used to construct a new dam, even as part of an overall safety strategy. b215782, apr. 7, 1986. if a',
5214:'proposed use of funds is inconsistent with the statutory language, the expenditure is improper, even if it would result in',
5215:'substantial savings or other benefits to the government. thus, while the federal aviation administration faa could construct its own roads',
5216:'needed for access to faa facilities, it could not contribute a share for the improvement of countyowned roads, even though',
5217:'the latter undertaking would have been much less expensive. b143536, aug. 15, 1960. see also 39 comp. gen. 388 1959.',
5218:'the limitation in 31 u.s.c. § 1301a applies to revolving funds. gao has held that revolving funds are appropriations, and,',
5219:'accordingly, that the page 47 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose legal principles governing appropriations also',
5220:'apply to revolving funds. see b247348, june 22, 1992; b240914, aug. 14, 1991. see also 63 comp. gen. 110, 112',
5221:'1983, and decisions cited therein. the concept of purpose permeates much of this publication. thus, many of the rules discussed',
5222:'in chapter 2 relate to purpose. for example: a specific appropriation must be used to the exclusion of a more',
5223:'general appropriation that might otherwise have been viewed as available for the particular item. chapter 2, section b.2. transfer between',
5224:'appropriations is prohibited without specific statutory authority, even where reimbursement is contemplated. chapter 2, section b.3. it follows that deliberately',
5225:'charging the wrong appropriation for purposes of expediency or administrative convenience, with the expectation of rectifying the situation by a',
5226:'subsequent transfer from the right appropriation, violates 31 u.s.c. § 1301a. 36 comp. gen. 386 1956; 26 comp. gen. 902,',
5227:'906 1947; 19 comp. gen. 395 1939; 14 comp. gen. 103 1934; b248284.2, sept. 1, 1992; b104135, aug. 2, 1951;',
5228:'b97772, may 18, 1951.1 the fact that the expenditure would be authorized under some other appropriation is irrelevant. charging the',
5229:'“wrong” appropriation, unless authorized by some statute such as 31 u.s.c. § 1534, violates the purpose statute. for several examples,',
5230:'see u.s. general accounting office, improper accounting for costs of architect of the capitol projects, plrd814 washington, d.c.: apr. 13,',
5231:'1981. the transfer rule illustrates the close relationship between 31 u.s.c. § 1301a and statutes relating to amount such as',
5232:'the antideficiency act, 31 u.s.c. § 1341. an unauthorized transfer violates 31 u.s.c. § 1301a because the transferred funds would',
5233:'be used for a purpose other than that for which they were originally appropriated. b279886, apr. 28, 1998; b278121, nov.',
5234:'7, 1997; b248284.2, sept. 1, 1992. if the receiving appropriation is exceeded, the antideficiency act is also violated. further, informal',
5235:'congressional approval of an unauthorized transfer of funds between appropriation accounts does not have the force and effect of law.',
5236:'b278121 and b248284.2, supra. 1the situation dealt with in b97772 and b104135, advances of travel expenses to government employees serving',
5237:'as witnesses, is now authorized by 5 u.s.c. § 5751. page 48 gao04261sp appropriations law—vol. i chapter 4 availability of',
5238:'appropriations: purpose although every violation of 31 u.s.c. § 1301a is not automatically a violation of the antideficiency act, and',
5239:'every violation of the antideficiency act is not automatically a violation of 31 u.s.c. § 1301a, cases frequently involve elements',
5240:'of both. thus, an expenditure in excess of an available appropriation violates both statutes. the reason the purpose statute is',
5241:'violated is that, unless the disbursing officer used personal funds, he or she must necessarily have used money appropriated for',
5242:'other purposes. 4 comp. dec. 314, 317 1897. the relationship between purpose violations and the antideficiency act is explored further',
5243:'in chapter 6. brief mention should also be made of the axiom that an agency cannot do indirectly what it',
5244:'is not permitted to do directly. thus, an agency cannot use the device of a contract, grant, or agreement to',
5245:'accomplish a purpose it could not do by direct expenditure. see 18 comp. gen. 285 1938 contract stipulation to pay',
5246:'wages in excess of davisbacon act rates held unauthorized. see also b259499, aug. 22, 1995 agreement to provide personal services',
5247:'to agency that is not authorized to contract for personal services is not authorized under the economy act. similarly, a',
5248:'grant of funds for unspecified purposes would be improper. 55 comp. gen. 1059, 1062 1976. settlements cannot include benefits that',
5249:'the agency does not have authority to provide. see b247348, june 22, 1992 broad authority to provide remedies for claims',
5250:'arising under title vii of the civil rights act does not permit an agency to provide unauthorized benefits. see also',
5251:'b239592, aug. 23, 1991. 2. determining authorized purposes a. statement of purpose where does one look to find the authorized',
5252:'purposes of an appropriation? the first place, of course, is the appropriation act itself and its legislative history. if the',
5253:'appropriation is general, it may also be necessary to consult the legislation authorizing the appropriation, if any, and the underlying',
5254:'program or organic legislation, together with their legislative histories. the actual language of the appropriation act is always of paramount',
5255:'importance in determining the purpose of an appropriation. every appropriation has one or more purposes in the sense that congress',
5256:'does not provide money for an agency to do with as it pleases, although purposes page 49 gao04261sp appropriations law—vol.',
5257:'i chapter 4 availability of appropriations: purpose are stated with varying degrees of specificity. one end of the spectrum is',
5258:'illustrated by this old private relief act: “[t]he secretary of the treasury …is hereby, authorized and directed to pay to',
5259:'george h. lott, a citizen of mississippi, the sum of one hundred fortyeight dollars ….” act of march 23, 1896,',
5260:'ch. 71, 29 stat. 711. this is one extreme. there is no need to look beyond the language of the',
5261:'appropriation; it was available to pay $148 to george h. lott, and for absolutely nothing else. language this specific leaves',
5262:'no room for administrative discretion. for example, the comptroller general has held that language of this type does not authorize',
5263:'reimbursement to an agency where the agency erroneously paid the individual before the private act had been passed. in this',
5264:'situation, the purpose for which the appropriation was made had ceased to exist. b151114, aug. 26, 1964. at the other',
5265:'extreme, smaller agencies may receive only one appropriation. the purpose of the appropriation will be to enable the agency to',
5266:'carry out all of its various authorized functions. for example, the consumer product safety commission receives but a single appropriation',
5267:'“for necessary expenses of the consumer product safety commission.”2 to determine permissible expenditures under this type of appropriation, it would',
5268:'be necessary to examine all of the agency’s substantive legislation, in conjunction with the “necessary expense” doctrine discussed later in',
5269:'this chapter. between the two extremes are many variations. a common form of appropriation funds a single program. for example,',
5270:'the interior department receives a separate appropriation to carry out the payments in lieu of taxes act pilt, 31 u.s.c.',
5271:'§ 6901–6904.3 while the appropriation is specific in the sense that it is limited to pilt payments and associated 2',
5272:'e.g., departments of veterans affairs and housing and urban development, and independent agencies appropriations act, 2003, pub. l. no. 1087,',
5273:'div. k, 117 stat. 11, 474, 506 feb. 20, 2003. 3 e.g., department of the interior and related agencies appropriations',
5274:'act, 2003, pub. l. no. 1087, div. f, title i, 117 stat. 11, 216, 218 feb. 20, 2003 “for expenses',
5275:'necessary to implement the act of october 20, 1976 . . ., $220,000,000, of which not to exceed $400,000 shall',
5276:'be available for administrative expenses.”. page 410 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose administrative expenses, it',
5277:'is nevertheless necessary to look beyond the appropriation language and examine the pilt statute to determine authorized expenditures. once the',
5278:'purposes have been determined by examining the various pieces of legislation, 31 u.s.c. § 1301a comes into play to restrict',
5279:'the use of the appropriation to these purposes only, together with one final generic category of payments—payments authorized under general',
5280:'legislation applicable to all or a defined group of agencies and not requiring specific appropriations. for example, legislation enacted in',
5281:'1982 amended 12 u.s.c. § 1770 to authorize federal agencies to provide various services, including telephone service, to employee credit',
5282:'unions. pub. l. no. 97320, § 515, 96 stat. 1469, 1530 oct. 15, 1982. prior to this legislation, an agency',
5283:'would have violated 31 u.s.c. § 1301a by providing telephone service to a credit union, even on a reimbursable basis,',
5284:'because this was not an authorized purpose under any agency appropriation. 60 comp. gen. 653 1981. the 1982 amendment made',
5285:'the providing of special services to credit unions an authorized agency function, and hence an authorized purpose, which it could',
5286:'fund from unrestricted general operating appropriations. 66 comp. gen. 356 1987. similarly, a recently enacted statute gives agencies the discretion',
5287:'to use appropriated funds to pay the expenses their employees incur for obtaining professional credentials. 5 u.s.c. § 5757a. see',
5288:'also b289219, oct. 29, 2002. prior to this legislation, agencies could not use appropriated funds to pay fees incurred by',
5289:'their employees in obtaining professional credentials. see, e.g., 47 comp. gen. 116 1967. other examples are interest payments under the',
5290:'prompt payment act 31 u.s.c. §§ 39013907 and administrative settlements less than $2,500 under the federal tort claims act 28',
5291:'u.s.c. §§ 2671 et seq.. b. specific purpose stated in appropriation act where an appropriation specifies the purpose for which',
5292:'the funds are to be used, 31 u.s.c. § 1301a applies in its purest form to restrict the use of',
5293:'the funds to the specified purpose. for example, an appropriation for topographical surveys in the united states was not available',
5294:'for topographical surveys in puerto rico. 5 comp. dec. 493 1899. similarly, an appropriation to install an electrical generating plant',
5295:'in the customhouse building in baltimore could not be used to install the plant in a nearby post office building,',
5296:'even though the plant would serve both buildings and thereby reduce operating expenses. 11 comp. dec. 724 1905. an appropriation',
5297:'for the extension and remodeling of the state department building was not available to construct a pneumatic tube delivery system',
5298:'between the state department and the white house. 42 comp. gen. 226 1962. in another example involving a lineitem page',
5299:'411 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose appropriation for a grant project, because the funds were',
5300:'made available for a specific grantee in a specific amount to accomplish a specific purpose, the agency could not grant',
5301:'less than congress has directed by using some of the appropriation to pay its administrative costs. 72 comp. gen. 317',
5302:'1993; 69 comp. gen. 660, 662 1990. and, as noted previously, an appropriation for the “replacement” of state roads could',
5303:'not be used to make improvements on them. 41 comp. gen. 255 1961. it is well settled, but warrants repeating,',
5304:'that even an expenditure that may be reasonably related to a general appropriation may not be paid out of that',
5305:'appropriation where the expenditure falls specifically within the scope of another appropriation. 63 comp. gen. 422 1984; b300325, dec. 13,',
5306:'2002; b290005, july 1, 2002. it is also well settled that when two appropriations are available for the same purpose,',
5307:'the agency must select which to use, and that once it has made an election, the agency must continue to',
5308:'use the same appropriation for that purpose unless the agency, at the beginning of the fiscal year, informs congress of',
5309:'its intent to change for the next fiscal year. b272191, nov. 4, 1997. see also, 68 comp. gen. 337 1989;',
5310:'59 comp. gen. 518 1980. an exception to this requirement is when congress specifically authorizes the use of two appropriation',
5311:'accounts. b272191, supra statutory language makes clear that congress intended that the “funds appropriated to the secretary [of the army]',
5312:'for operation and maintenance” in the fiscal year 1993 defense appropriations act are “[i]n addition to …the funds specifically appropriated',
5313:'for real property maintenance under the heading [rpm,d]” in that appropriation act. the following cases will further illustrate the interpretation',
5314:'and application of appropriation acts denoting a specific purpose to which the funds are to be dedicated. in each of',
5315:'the examples, the appropriation in question was the u.s. forest service’s appropriation for the construction and maintenance of “forest roads',
5316:'and trails.” in 37 comp. gen. 472 1958, the forest service sought to construct airstrips on land in or adjacent',
5317:'to national forests. the issue was the extent to which the costs could be charged to the roads and trails',
5318:'appropriation as opposed to other forest service appropriations such as “forest protection and utilization.” at hearings before the appropriations committees,',
5319:'forest service officials had announced their intent to charge most of the landing fields to the roads and trails appropriation.',
5320:'the appropriation act in question provided that “appropriations available to the forest service for the current fiscal year shall be',
5321:'available for” construction of the landing fields up to a specified dollar amount, but the item was not page 412',
5322:'gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose mentioned in any of the individual appropriations. gao concluded that',
5323:'the proposal to indiscriminately charge the landing fields to roads and trails would violate 31 u.s.c. § 1301a. the roads',
5324:'and trails appropriation could be used for only those landing fields that were directly connected with and necessary to accomplishing',
5325:'the purposes of that appropriation. landing fields not directly connected with the purposes of the roads and trails appropriation, for',
5326:'example, airstrips needed to assist in firefighting in remote areas, had to be charged to the appropriation to which they',
5327:'were related, such as forest protection and utilization. the mere mention of intent at the hearings was not sufficient to',
5328:'alter the availability of the appropriations. later, in 53 comp gen. 328 1973, the comptroller general held that the forest',
5329:'roads and trails appropriation could not be charged with the expense of closing roads or trails and returning them to',
5330:'their natural state, such activity being neither “construction” nor “maintenance.” again, in b1644973, feb. 6, 1979, gao decided that the',
5331:'forest service could not use the roads and trails appropriation to maintain a part of a federally constructed scenic highway',
5332:'on forest service land in west virginia, although the state was prevented from maintaining it because the scenic highway was',
5333:'closed to commercial traffic. the roads and trails account was improper to charge with the maintenance because the term “forest',
5334:'road” was statutorily defined as a service or access road “necessary for the protection, administration, and utilization of the [national',
5335:'forest] system and the use and development of its resources.” the highway, a scenic parkway reserved exclusively for recreational and',
5336:'passenger travel through a national forest, was not the type of forest road the appropriation was available to maintain. the',
5337:'decision further noted, however, that the forest protection and utilization appropriation was somewhat broader and could be used for the',
5338:'contemplated maintenance. a 1955 case illustrates a type of expenditure that could properly be charged to the roads and trails',
5339:'account. construction of a timber access road on a national forest uncovered a site of old indian ruins. since the',
5340:'road construction itself was properly chargeable to the roads and trails appropriation, the forest service could use the same appropriation',
5341:'to pay the cost of archaeological and exploratory work necessary to obtain and preserve historical data from the ruins before',
5342:'they were destroyed by the page 413 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose construction. rerouting was',
5343:'apparently not possible. b125309, dec. 6, 1955.4 in any case, an appropriation serves as a limitation, or more accurately, a',
5344:'series of limitations relating to time and amount in addition to purpose. in some situations, an appropriation is simultaneously a',
5345:'grant of authority. for example, 5 u.s.c. § 3109 authorizes agencies to procure the services of experts and consultants, but',
5346:'only “[w]hen authorized by an appropriation or other statute.” in contrast with the statute authorizing services for credit unions noted',
5347:'earlier, 5 u.s.c. § 3109 by itself does not authorize an agency to spend general operating appropriations to hire consultants.',
5348:'unless an agency has received this authority somewhere in its permanent legislation, the hiring of consultants under section 3109 is',
5349:'an authorized purpose only if it is specified in the agency’s appropriation act. 3. new or additional duties appropriation acts',
5350:'tend to be bunched at certain times of the year while substantive legislation may be enacted any time. a frequently',
5351:'recurring situation is where a statute is passed imposing new duties on an agency but not providing any additional appropriations.',
5352:'the question is whether implementation of the new statute must wait until additional funds are appropriated, or whether the agency',
5353:'can use its existing appropriations to carry out the new function, either pending receipt of further funding through the normal',
5354:'budget process or in the absence of additional appropriations assuming in either case the absence of contrary congressional intent. the',
5355:'rule is that existing agency appropriations that generally cover the type of expenditures involved are available to defray the expenses',
5356:'of new or additional duties imposed by proper legal authority. the test for availability is whether the duties imposed by',
5357:'the new law bear a sufficient relationship to the purposes for which the previously enacted appropriation was made so as',
5358:'to justify the use of that appropriation for the new duties. for example, in the earliest published decision cited for',
5359:'the rule, the comptroller general held that the securities and exchange commission could use its general operating appropriation for fiscal',
5360:'year 1936 to 4 the protection of archaeological data is now provided by statute. see 16 u.s.c.§ 469a1 and the',
5361:'archaeological resources protection act of 1979, 16 u.s.c. §§ 470aa et seq. page 414 gao04261sp appropriations law—vol. i chapter 4',
5362:'availability of appropriations: purpose perform additional duties imposed on it by the later enacted public utility holding company act of',
5363:'1935 49 stat. 803 aug. 26, 1935. 15 comp. gen. 167 1935. similarly, the interior department could use its 1979',
5364:'“departmental management” appropriation to begin performing duties imposed by the public utilities regulatory policies act of 1978,5 and to provide',
5365:'reimbursable support costs for the endangered species committee and review board created by the endangered species act amendments of 1978.6',
5366:'both statutes were enacted after the interior department’s 1979 appropriation. b195007, july 15, 1980. the rule has also been applied',
5367:'to additional duties imposed by executive order. 32 comp. gen. 347 1953; 30 comp. gen. 258 1951. additional cases are',
5368:'30 comp. gen. 205 1950; b290011, mar. 25, 2002; b211306, june 6, 1983; b153694, oct. 23, 1964. a variation occurred',
5369:'in 54 comp. gen. 1093 1975. the unexpended balance of a commerce department appropriation, which had been used to administer',
5370:'a loan guarantee program and to make collateral protection payments under the trade expansion act of 1962, 19 u.s.c. §§',
5371:'1901–1920 1970, was transferred to a similar but new program by the trade act of 1974.7 the 1974 statute repealed',
5372:'the earlier provisions. this meant that the transferred funds could no longer be used for expenses under the 1962 act—including',
5373:'payments on guarantee commitments—even though that was the purpose for which they were originally appropriated, unless the expenditures could also',
5374:'be viewed as relating to the commerce department’s functions under the 1974 act. applying the rationale of the laterimposed duty',
5375:'cases, the comptroller general concluded that the purposes of the two programs were sufficiently related so that the commerce department',
5376:'could continue to use the transferred funds to make collateral protection payments and to honor guarantees made under the 1962',
5377:'act. a related question is the extent to which an agency may use current appropriations for preliminary administrative expenses in',
5378:'preparation for 5pub. l. no. 95617, 92 stat. 3117 nov. 9, 1978, codified at 43 u.s.c. §§ 2001 et seq.',
5379:'6pub. l. no. 95632, 92 stat. 3751 nov. 10, 1978, codified at 16 u.s.c. §§ 1536 et seq. 7 pub.',
5380:'l. no. 93618, § 602e, 88 stat. 1978, 2072 jan. 3, 1975. page 415 gao04261sp appropriations law—vol. i chapter 4',
5381:'availability of appropriations: purpose implementing a new law, prior to the receipt of substantive appropriations for the new program. again,',
5382:'the appropriation is available provided it is sufficiently broad to embrace expenditures of the type contemplated. thus, the national science',
5383:'foundation could use its fiscal year 1967 appropriations for preliminary expenses of implementing the national sea grant college and program',
5384:'act of 1966,8 enacted after the appropriation, since the purposes of the new act were basically similar to the purposes',
5385:'of the appropriation. 46 comp. gen. 604 1967. the preliminary tasks in that case included such things as development of',
5386:'policies and plans, issuance of internal instructions, and the establishment of organizational units to administer the new program. similarly, the',
5387:'bureau of land management could use current appropriations to determine fair market value and to initiate negotiations with owners in',
5388:'connection with the acquisition of mineral interests under the cranberry wilderness act,9 even though actual acquisitions could not be made',
5389:'until funding was provided in appropriation acts. b211306, june 6, 1983. see also b153694, oct. 23, 1964; b153694, sept. 2,',
5390:'1964. where congress has not made a specific appropriation available to fund additional or new duties and an existing appropriation',
5391:'is used based upon a determination that the new duties bear a sufficient relationship to the purpose for which the',
5392:'existing appropriation was made, the agency may not reimburse the existing appropriation that was used once the new appropriation is',
5393:'available. 30 comp. gen. 258 1951; b290011, supra. the shifting of money from one appropriation to another in the absence',
5394:'of statutory authority is prohibited by 31 u.s.c. § 1532.10 compare b300673, july 3, 2003, where gao concluded that the',
5395:'chief administrative officer cao for the house of representatives was allowed to use the cao fiscal year 2003 salaries and',
5396:'expenses appropriation to reimburse the house of representatives child care center revolving fund for certain payments incurred by the center',
5397:'at the beginning of fiscal year 2003 during a period covered by a continuing resolution, before enactment of the fiscal',
5398:'year 2003 appropriation. in this case, cao’s fiscal year 2003 appropriation expressly 8 pub. l. no. 89688, 80 stat. 998',
5399:'oct. 15, 1966. 9 pub. l. no. 97466, 96 stat. 2538 jan. 13, 1983. 10 section 1532 provides in pertinent',
5400:'part, “[a]n amount available under law may be withdrawn from one appropriation account and credited to another …only when authorized',
5401:'by law.” page 416 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose directed that it cover the center',
5402:'director’s salary and employees’ training costs for fiscal year 2003 and thereafter. under the plain meaning of the appropriation language,',
5403:'the cao appropriation was the proper one to charge for all expenses incurred in fiscal year 2003. 4. termination of',
5404:'program a. termination desired if congress appropriates money to implement a program, can the agency use that money to terminate',
5405:'the program? expenses of terminating a program could include such things as contract termination costs and personnel reductioninforce expenses. if',
5406:'implementation of the program is mandatory, the answer is no. in 1973, for example, the administration attempted to terminate certain',
5407:'programs funded by the office of economic opportunity oeo, relying in part on the fact that it had not requested',
5408:'any funds for oeo for 1974. the programs in question were funded under a multiple year authorization that directed that',
5409:'the programs be carried out during the fiscal years covered by the authorization. the u.s. district court for the district',
5410:'of columbia held that funds appropriated to carry out the programs could not be used to terminate them. local 2677,',
5411:'american federation of government employees v. phillips, 358 f. supp. 60 d.d.c. 1973. the court cited 31 u.s.c. § 1301a',
5412:'as one basis for its holding. id. at 76 n.17. see also 63 comp. gen. 75, 78 1983. where the',
5413:'program is nonmandatory, the agency has more discretion, but there are still limits. in b115398, aug. 1, 1977, the comptroller',
5414:'general advised that the air force could terminate b1 bomber production, which had been funded under a lumpsum appropriation and',
5415:'was not mandated by any statute. later cases have stated the rule that an agency may use funds appropriated for',
5416:'a program to terminate that program where 1 the program is nonmandatory and 2 the termination would not result in',
5417:'curtailment of the overall program to such an extent that it would no longer be consistent with the scheme of',
5418:'applicable program legislation. 61 comp. gen. 482 1982 department of energy could use funds appropriated for fossil energy research and',
5419:'development to terminate certain fossil energy programs; b203074, aug. 6, 1981. several years earlier, gao had held that the closing',
5420:'of all public health service hospitals would exceed the surgeon general’s discretionary authority because a major portion of the public',
5421:'health service act would effectively be inoperable without the public health service hospital system. b156510, feb. 23, 1971; b156510, june',
5422:'7, 1965. page 417 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose the concepts are further illustrated in',
5423:'a series of cases involving the clinch river nuclear breeder reactor. in 1977, the administration proposed using funds appropriated for',
5424:'the design, development, construction, and operation of the reactor to terminate the project. construction of a breeder reactor had been',
5425:'authorized, but not explicitly mandated, by statute. as contemplated by the program legislation, the energy research and development administration, the',
5426:'predecessor of the department of energy, had submitted program criteria for congressional approval. gao reviewed the statutory scheme, found that',
5427:'the approved program criteria were “as much a part of [the authorizing statute] as if they were explicitly stated in',
5428:'the statutory language itself,” and concluded that use of program funds for termination was unauthorized. b115398, june 23, 1977.11 two',
5429:'subsequent opinions reached the same conclusion, supported further by a provision in a 1978 supplemental appropriation act that specifically earmarked',
5430:'funds for the reactor. b164105, mar. 10, 1978; b164105, dec. 5, 1977. by 1983 the situation had changed. congressional support',
5431:'for the reactor had eroded considerably, no funds were designated for it for fiscal year 1984, and it became apparent',
5432:'that further funding for the project was unlikely. in light of these circumstances, gao revisited the termination question and concluded',
5433:'that the department of energy now had a legal basis to use 1983 funds to terminate the project in accordance',
5434:'with the project justification data that provided for termination in the event of insufficient funds to permit effective continuation. 63',
5435:'comp. gen. 75 1983. b. reauthorization pending another variation occurs when an entity’s enabling legislation is set to expire and',
5436:'congress shows signs of extending or reauthorizing the entity, but has not yet provided funds or authority to continue. for',
5437:'example, the u.s.advisory commission on intergovernmental relations acir was statutorily authorized to give continuing attention to intergovernmental problems. in 1995,',
5438:'acir was statutorily terminated effective september 30, 1996. about 2 months before acir was to terminate, congress enacted legislation giving',
5439:'acir a new responsibility to provide research and a report under a contract with the national gambling impact study commission.',
5440:'although congress continued acir’s existence beyond fiscal year 1996 for the limited purpose of providing research for the gambling 11gao',
5441:'reached this conclusion prior to the supreme court’s decision in immigration & naturalization service v. chadha, 462 u.s. 919 1983.',
5442:'page 418 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose commission, congress appropriated no funds for fiscal year',
5443:'1997. acir had separate statutory authority, 42 u.s.c. § 4279, to receive and expend unrestricted contributions made to acir from',
5444:'state governments. in b274855, jan. 23, 1997, gao held that this statute constituted an appropriation a permanent, indefinite appropriation12 separate',
5445:'from acir’s annually enacted fiscal year appropriation, and that from october 1, 1996, until such time as acir was awarded',
5446:'the research contract, acir could use its unconditional state government contributions. another situation may occur when an entity’s authorizing legislation',
5447:'is set to terminate and congress provides an appropriation but does not reauthorize the entity until months later. in 71',
5448:'comp. gen. 378 1992, the u.s.commission on civil rights was set to terminate by operation of law on september 30,',
5449:'1991. the commission was not reauthorized until november 26, 1991. however, during the interim and prior to the expiration date,',
5450:'congress provided the commission with appropriations for fiscal year 1992. once a termination or sunset provision for an entity becomes',
5451:'effective, the agency ceases to exist and no new obligations may be incurred after the termination date.13 however, when congress',
5452:'desires to extend, amend, suspend, or repeal a statute, it can accomplish its purpose by including the requisite language in',
5453:'an appropriations or other act of congress. after viewing the legislative actions, in their entirety, on the commission’s reauthorization and',
5454:'appropriation bills, gao determined that congress clearly intended for the commission to continue to operate after september 30, 1991. gao',
5455:'held that the specific appropriation provided to the commission served to suspend its termination until the commission was reauthorized. b.',
5456:'the “necessary expense” doctrine 1. the theory the preceding discussion establishes the primacy of 31 u.s.c. § 1301a in any',
5457:'discussion of purpose availability. the next point to emphasize is that 12 see chapter 2 for a discussion of permanent,',
5458:'indefinite appropriations. 13 71 comp. gen. at 380 n.7, citing inter alia b182081, jan. 26, 1977, aff’d upon reconsideration, b182081,',
5459:'feb. 14, 1979. page 419 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose 31 u.s.c. § 1301a does',
5460:'not require, nor would it be reasonably possible, that every item of expenditure be specified in the appropriation act. while',
5461:'the statute is strict, it is applied with reason. the spending agency has reasonable discretion in determining how to carry',
5462:'out the objects of the appropriation. this concept, known as the “necessary expense doctrine,” has been around almost as long',
5463:'as the statute itself. an early statement of the rule is contained in 6 comp. gen. 619, 621 1927: “it',
5464:'is a wellsettled rule of statutory construction that where an appropriation is made for a particular object, by implication it',
5465:'confers authority to incur expenses which are necessary or proper or incident to the proper execution of the object, unless',
5466:'there is another appropriation which makes more specific provision for such expenditures, or unless they are prohibited by law, or',
5467:'unless it is manifestly evident from various precedent appropriation acts that congress has specifically legislated for certain expenses of the',
5468:'government creating the implication that such expenditures should not be incurred except by its express authority.” the necessary expense rule',
5469:'is really a combination of two slightly different but closely related concepts: 1. an appropriation made for a specific object',
5470:'is available for expenses necessarily incident to accomplishing that object unless prohibited by law or otherwise provided for. for example,',
5471:'an appropriation to erect a monument at the birthplace of george washington could be used to construct an iron fence',
5472:'around the monument where administratively deemed necessary to protect the monument. 2 comp. dec. 492 1896. likewise, an appropriation to',
5473:'purchase bison for consumption covers the slaughtering and processing of the bison as well as the actual purchase. b288658, nov.',
5474:'30, 2001. 2. appropriations, even for broad categories such as salaries, frequently use the term “necessary expenses.” as used in',
5475:'this context, the term refers to “current or running expenses of a miscellaneous character arising out of and directly related',
5476:'to the agency’s work.” 38 comp. gen. 758, 762 1959; 4 comp. gen. 1063, 1065 1925. page 420 gao04261sp appropriations',
5477:'law—vol. i chapter 4 availability of appropriations: purpose although the theory is identical in both situations, the difference is that',
5478:'expenditures in the second category relate to somewhat broader objects. the comptroller general has never established a precise formula for',
5479:'determining the application of the necessary expense rule. in view of the vast differences among agencies, any such formula would',
5480:'almost certainly be unworkable. rather, the determination must be made essentially on a casebycase basis. in addition to recognizing the',
5481:'differences among agencies when applying the necessary expense rule, we act to maintain a vigorous body of case law responsive',
5482:'to the changing needs of government. in this regard, our decisions indicate a willingness to consider changes in societal expectations',
5483:'regarding what constitutes a necessary expense. this flexibility is evident, for example, in our analysis of whether an expenditure constitutes',
5484:'a personal or an official expense. as will be discussed more fully later in the chapter, use of appropriations for',
5485:'such an expenditure is determined by continually weighing the benefit to the agency, such as the recruitment and retention of',
5486:'a dynamic workforce and other considerations enabling efficient, effective, and responsible government. we recognize, however, that these factors can change',
5487:'over time. b286026, june 12, 2001 overruling gao’s earlier decisions based on reassessment of the training opportunities afforded by examination',
5488:'review courses; b280759, nov. 5, 1998 overruling gao’s earlier decisions on the purchase of business cards. see also 71 comp.',
5489:'gen. 527 1992 eldercare is not a typical employee benefit provided to the nonfederal workforce and not one that the',
5490:'federal workforce should expect; b288266, jan. 27, 2003 gao explained it remained “willing to reexamine our case law” regarding light',
5491:'refreshments if it is shown to frustrate efficient, effective, and responsible government. when applying the necessary expense rule, an expenditure',
5492:'can be justified after meeting a threepart test: 1. the expenditure must bear a logical relationship to the appropriation sought',
5493:'to be charged. in other words, it must make a direct contribution to carrying out either a specific appropriation or',
5494:'an authorized agency function for which more general appropriations are available. 2. the expenditure must not be prohibited by law.',
5495:'page 421 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose a. relationship to the appropriation 3. the expenditure',
5496:'must not be otherwise provided for, that is, it must not be an item that falls within the scope of',
5497:'some other appropriation or statutory funding scheme. e.g., 63 comp. gen. 422, 427–28 1984; b240365.2, mar. 14, 1996; b230304, mar.',
5498:'18, 1988. the first test—the relationship of the expenditure to the appropriation—is the one that generates by far the lion’s',
5499:'share of questions. on the one hand, the rule does not require that a given expenditure be “necessary” in the',
5500:'strict sense that the object of the appropriation could not possibly be fulfilled without it. thus, the expenditure does not',
5501:'have to be the only way to accomplish a given object, nor does it have to reflect gao’s perception of',
5502:'the best way to do it. yet on the other hand, it has to be more than merely desirable or',
5503:'even important. e.g., 34 comp. gen. 599 1955; b42439, july 8, 1944. an expenditure cannot be justified merely because some',
5504:'agency official thinks it is a good idea, nor can it be justified simply because it is a practice engaged',
5505:'in by private business. see b288266, jan. 27, 2003. the important thing is not the significance of the proposed expenditure',
5506:'itself or its value to the government or to some social purpose in abstract terms, but the extent to which',
5507:'it will contribute to accomplishing the purposes of the appropriation the agency wishes to charge. for example, the forest service',
5508:'can use its appropriation for “forest protection and utilization” to buy plastic litterbags for use in a national forest. 50',
5509:'comp. gen. 534 1971. see also 72 comp. gen. 73 1992 the environmental protection agency epa can purchase buttons promoting',
5510:'indoor air quality for its conference since the message conveyed is related to epa’s mission; 71 comp. gen. 28 1991',
5511:'the internal revenue service irs can cover cost of its employees filing electronic tax returns because it trains employees; b257488,',
5512:'nov. 6, 1995 the food and drug administration is permitted to purchase “no red tape” buttons to promote employee efficiency',
5513:'and effectiveness and thereby the agency’s purpose. however, operating appropriations of the equal employment opportunity commission eeoc are not available',
5514:'to pay irs the taxes due on judgment proceeds recovered by eeoc in an enforcement action. while the payment would',
5515:'further a purpose of the irs, it would not contribute to fulfilling the page 422 gao04261sp appropriations law—vol. i chapter',
5516:'4 availability of appropriations: purpose purposes of the eeoc appropriation. 65 comp. gen. 800 1986.14 see also 70 comp. gen.',
5517:'248 1991 purchasing tshirts for combined federal campaign cfc contributors is not permitted because tshirts are not essential to achieving',
5518:'the authorized purpose of cfc. if the basic test is the relationship of the expenditure to the appropriation sought to',
5519:'be charged, it should be apparent that the “necessary expense” concept is a relative one. as stated in 65 comp.',
5520:'gen. 738, 740 1986: “we have dealt with the concept of ‘necessary expenses’ in a vast number of decisions over',
5521:'the decades. if one lesson emerges, it is that the concept is a relative one: it is measured not by',
5522:'reference to an expenditure in a vacuum, but by assessing the relationship of the expenditure to the specific appropriation to',
5523:'be charged or, in the case of several programs funded by a lumpsum appropriation, to the specific program to be',
5524:'served. it should thus be apparent that an item that can be justified under one program or appropriation might be',
5525:'entirely inappropriate under another, depending on the circumstances and statutory authorities involved.” the evident difficulty in stating a precise rule',
5526:'emphasizes the role and importance of agency discretion. it is in the first instance up to the administrative agency to',
5527:'determine that a given item is reasonably necessary to accomplishing an authorized purpose. once the agency makes this determination, gao',
5528:'will normally not substitute its own judgment for that of the agency. in other words, the agency’s administrative determination of',
5529:'necessity will be given considerable deference. generally, the interpretation of a statute by the agency that congress has charged with',
5530:'the responsibility for administering it is entitled to considerable weight. this discretion, however, is not without limits. the agency’s interpretation',
5531:'must be reasonable and must be based on a permissible construction of the statute. united states v. mead corp., 533',
5532:'u.s. 218, 226–238 2001; chevron, inc. v. natural resources defense council, 467 u.s. 837 1984. see also b286661, jan. 19,',
5533:'2001 expansive 14 it should be noted, however, that settlement payments in discrimination suits could be paid from an agency’s',
5534:'general operating funds when the suit and settlement are incident to the agency’s operation. b257334, june 30, 1995. page 423',
5535:'gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose definition exceeds the bounds of the privatization act and violates',
5536:'the requirement of 31 u.s.c. § 1301a. the standard gao uses in evaluating purpose availability is summarized in the following',
5537:'passage from b223608, dec. 19, 1988: “when we review an expenditure with reference to its availability for the purpose at',
5538:'issue, the question is not whether we would have exercised that discretion in the same manner. rather, the question is',
5539:'whether the expenditure falls within the agency’s legitimate range of discretion, or whether its relationship to an authorized purpose or',
5540:'function is so attenuated as to take it beyond that range.” a decision on a “necessary expense” question therefore involves',
5541:'1 analyzing the agency’s appropriations and other statutory authority to determine whether the purpose is authorized and 2 evaluating the',
5542:'adequacy of the administrative justification, to decide whether the agency has properly exercised, or exceeded, its discretion. the role of',
5543:'discretion in purpose availability is further complicated by the fact that not all federal establishments have the same range of',
5544:'discretion. for example, a government corporation with the authority to determine the character and necessity of its expenditures has, by',
5545:'virtue of its legal status, a broader measure of discretion than a “regular” agency. but even this discretion is not',
5546:'unlimited and is bound at least by considerations of sound public policy. see 14 comp. gen. 755 1935, aff’d upon',
5547:'reconsideration, a60467, june 24, 1936. two decisions involving the bonneville power administration bpa will illustrate. in 1951, the interior department',
5548:'asked whether funds appropriated to bpa could be used to enter into a contract to conduct a survey to determine',
5549:'the feasibility of “artificial nucleation and cloud modification” artificial rainmaking in english for a portion of the columbia river drainage',
5550:'basin. if the amount of rainfall during the dry season could be significantly increased by this method, the amount of',
5551:'marketable power for the region would be enhanced. naturally, bpa did not have an appropriation specifically available for rainmaking. however,',
5552:'in view of bpa’s statutory role in the sale and disposition of electric power in the region, gao concluded that',
5553:'the expenditure was authorized. b104463, july 23, 1951. page 424 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose',
5554:'the interior department then asked whether, assuming the survey results were favorable, bpa could contract with the rainmakers. gao thought',
5555:'this was going too far and questioned whether bpa’s statutory authority to encourage the widest possible use of electric energy',
5556:'really contemplated artificial rainmaking. gao emphasized that the expenditure would be improper for a department or agency with the “ordinary',
5557:'authority usually granted” to federal agencies. however, the legislative history of bpa’s enabling statute indicated that congress intended that it',
5558:'have a degree of freedom similar to public corporations and that it be largely free from “the requirements and restrictions',
5559:'ordinarily applicable to the conduct of government business.” therefore, while the comptroller general expressly refused to “approve” the rainmaking contract,',
5560:'he felt compelled to hold that bpa’s funds were legally available for it. b105397, sept. 21, 1951. for the typical',
5561:'federal department or agency, the range of discretion will be essentially the same, with variations in the kinds of things',
5562:'justifiable under the necessary expense umbrella stemming from program differences. for example, necessary expenses for an agency with law enforcement',
5563:'responsibilities may include items directly related to that authority, which would be inappropriate for agencies without law enforcement functions. thus,',
5564:'the immigration and naturalization service could use its salaries and expenses appropriation to purchase and install lights, automatic warning devices,',
5565:'and observation towers along the boundary between the united states and mexico. 29 comp. gen. 419 1950. see also 7',
5566:'comp. dec. 712 1901. similarly, in b204486, jan. 19, 1982, the federal bureau of investigation could buy insurance on an',
5567:'undercover business not so much to insure the property, but to enhance the credibility of the operation. the procurement of',
5568:'evidence is also authorized as a necessary expense for an agency with law enforcement responsibilities. for example, forest service appropriations',
5569:'could be used to pay towing and storage charges for a truck seized as evidence of criminal activities in a',
5570:'national forest. b186365, mar. 8, 1977. see also 27 comp. gen. 516 1948; 26 comp. dec. 780, 783 1920; b56866,',
5571:'apr. 22, 1946. also, the customs service could use its operating appropriations to cover the cost of extending its psychological',
5572:'assessment and referral services to its employees’ family members adversely affected by workrelated incidents arising from law enforcement activities involving',
5573:'death or serious injury to its employee in the line of duty. b270446, feb. 11, 1997. cases involving fairs and',
5574:'expositions provide further illustration. for the most part, when congress desires federal participation in fairs or page 425 gao04261sp appropriations',
5575:'law—vol. i chapter 4 availability of appropriations: purpose expositions, it has been authorized by specific legislation. see, e.g., b160493, jan.',
5576:'16, 1967 legislation authorized federal participation in hemisfair 1968 in san antonio. for another example, united states participation in the',
5577:'1927 international exposition in seville, spain, was specifically authorized by statute. see 10 comp. gen. 563, 564 1931. however, specific',
5578:'statutory authority is not essential. if participation is directly connected with and is in furtherance of the purposes for which',
5579:'a particular appropriation has been made, and an appropriate administrative determination is made to that effect, the appropriation is available',
5580:'for the expenditure. b290900, mar. 18, 2003 bureau of land management blm may use its appropriated funds to pay its',
5581:'share of the cost to produce a brochure that educates the public regarding lighthouse preservation because the brochure supports blm',
5582:'in meeting its responsibility under its lighthouse preservation program; b286457, jan. 29, 2001 demolition of old air traffic control tower',
5583:'that would obstruct the view from the new one is directly connected with and in furtherance of the construction of',
5584:'a new tower such that the demolition expenses are covered by federal aviation administrations appropriation act for tower construction; b280440,',
5585:'feb. 26, 1999 immigration and naturalization service’s ins salaries and expenses appropriation is available to purchase medals to be worn',
5586:'by uniformed employees of the border patrol division of ins to commemorate the division’s 75th anniversary. see also 16 comp.',
5587:'gen. 53 1936; 10 comp. gen. 282 1930; 7 comp. gen. 357 1927; 4 comp. gen. 457 1924.15 authority to',
5588:'disseminate information will generally provide adequate justification. e.g., 7 comp. gen. 357; 4 comp. gen. 457. in addition, an agency',
5589:'may use appropriated funds to provide prizes to individuals to further the collection of information necessary to accomplish the agency’s',
5590:'statutory mandate.16 see, e.g., 70 comp. gen. 720 1991; b286536, nov. 17, 2000; b230062, dec. 22, 1988. in the absence',
5591:'of either statutory authority or an adequate justification under the necessary expense doctrine, the expenditure, like any other expenditure, is',
5592:'illegal. thus, the department of housing and urban 15 a few early cases purporting to require specific authority, such as',
5593:'2 comp. gen. 581 1923, must be regarded as implicitly modified by the later cases. 16 gao cases cautioned that',
5594:'when the award of prizes contained elements of a lottery, which may be prohibited by certain federal statutes, state laws,',
5595:'and regulations, the agency should consult with the department of justice to ensure that its proposal is not a prohibited',
5596:'lottery before spending any appropriated funds. page 426 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose b. expenditure',
5597:'otherwise prohibited development hud had no authority to finance participation at a trade exhibition in the soviet union where hud’s',
5598:'primary purpose was to enhance business opportunities for american companies. 68 comp. gen. 226 1989; b229732, dec. 22, 1988. regardless',
5599:'of whether it may or may not have been a good idea, commercial trade promotion is not one of the',
5600:'purposes for which congress appropriates money to hud. no discussion would be complete without some mention of the “marauding woodpecker”',
5601:'case. it appears that in 1951, marauding woodpeckers were causing considerable damage to governmentowned transmission lines and the southwestern power',
5602:'administration, interior department interior wanted to buy guns with which to shoot the woodpeckers. interior first went to the army,',
5603:'but the army advised that the types of guns and ammunition desired were not available, so interior next came to',
5604:'gao. the comptroller general held that, if administratively determined to be necessary to protect the transmission lines, interior could buy',
5605:'the guns and ammunition from the southwestern power administration’s construction appropriation. the views of the woodpeckers were not solicited. b105977,',
5606:'dec. 3, 1951. actually, this was not a totally novel issue. several years earlier, gao had approved the use of',
5607:'an interior department “maintenance of range improvements” appropriation for the control of coyotes, rodents, and other “predatory animals.” a82570, dec.',
5608:'30, 1936. see also a82570, b120739, aug. 21, 1957.17 the second test under the necessary expense doctrine is that the',
5609:'expenditure must not be prohibited by law. as a general proposition, neither a necessary expense rationale nor the “necessary expense”',
5610:'language 17 everyone loves a good animal case. unfortunately, the animals in most gao decisions are dead or, as in',
5611:'the cases cited in the text, soon to become dead. readers interested more in amusement than precedent might also check',
5612:'out 7 comp. gen. 304 1927 removal of a horse “found dead lying on its back in a hole”; 18',
5613:'comp. gen. 109 1938 another dead horse; b86211, july 26, 1949 death of hogs allegedly caused by being fed garbage',
5614:'purchased from navy installation; it was pointed out that other hogs had eaten the same governmentfurnished garbage and managed to',
5615:'survive;; b47255, feb. 6, 1945 burial of three dead bulls; b37205, oct. 19, 1943 mule fell off cable swing bridge;',
5616:'a92649, apr. 22, 1938 still another dead horse; b115434o.m., june 19, 1953 agency borrowed a bull from another agency for',
5617:'breeding purposes, then had it slaughtered when it became vicious. these cases are being memorialized here because they will probably',
5618:'never be cited anywhere else. insects do not escape either. see 34 comp. gen. 236 1954 grasshopper control in national',
5619:'forests. with the third edition of this volume, gao is pleased to report our first fish case. see 70 comp.',
5620:'gen. 720 1991 rate of fish migration measured by fisherman returning government fish tags from fish presumed dead or to',
5621:'have at least had a very bad day. page 427 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose',
5622:'in an appropriation act can be used to overcome a statutory prohibition. e.g., b277905, mar. 17, 1998 expenditure for installation',
5623:'and maintenance of water pipelines to support a military base golf course not permissible because such expenditure is specifically prohibited',
5624:'by 10 u.s.c. § 2246, which prohibit the use of appropriated funds to “equip, operate, or maintain” a golf course;',
5625:'b247348, june 22, 1992 detail of government printing office employee to library of congress not permissible because 44 u.s.c. §',
5626:'316 prohibits details for “duties not pertaining to the work of public printing and binding”. in 38 comp. gen. 758',
5627:'1959 and 4 comp. gen. 1063 1925, the comptroller general held that the necessary expense language did not overcome the',
5628:'prohibition in 41 u.s.c. § 12 against contracting for public buildings or public improvements in excess of appropriations for the',
5629:'specific purpose. in large measure, this is little more than an application of the rule against repeal by implication discussed',
5630:'in chapter 2, section c.2.h. there are exceptions where applying the rule would make it impossible to carry out a',
5631:'specific appropriation. a very small group of cases stands for the proposition that, where a specific appropriation is made for',
5632:'a specific purpose, an expenditure that is “absolutely essential” to accomplishing the specific object may be incurred even though the',
5633:'expenditure would otherwise be prohibited. in order for this exception to apply, the expenditure must literally be absolutely essential in',
5634:'the sense that the object of the appropriation could not be accomplished without it. also, the rule would not apply',
5635:'to the use of a more general appropriation. for example, in 2 comp. gen. 133 1922, modifying 2 comp. gen.',
5636:'14 1922, an appropriation to provide airmail service between new york, chicago, and san francisco was held available to construct',
5637:'hangars and related facilities at a landing field in chicago notwithstanding the requirement for a specific appropriation in 41 u.s.c.',
5638:'§ 12. the reason was that it would have been impossible to provide the service, and hence, to accomplish the',
5639:'purpose of the appropriation, without erecting the facilities. see also 17 comp. gen. 636 1938 and 22 comp. dec. 317',
5640:'1916. the 1938 decision cites the rule but the decision itself is an ordinary necessary expense case. an 1899 case,',
5641:'6 comp. dec. 75, provides another good illustration of the concept. the building housing the department of justice justice had',
5642:'become unsafe and overcrowded. congress enacted legislation to authorize and fund the construction of a new building. the statute specifically',
5643:'provided that the new building be constructed on the site of the old page 428 gao04261sp appropriations law—vol. i chapter',
5644:'4 availability of appropriations: purpose c. expenditure otherwise provided for building, but did not address the question of how justice',
5645:'would function during the construction period. the obvious solution was to rent another building until the new one was ready,',
5646:'but 40 u.s.c. § 34 prohibited the rental of space in the district of columbia except under an appropriation specifically',
5647:'available for that purpose, and justice had no such appropriation. on the grounds that any other result would be absurd,',
5648:'the comptroller of the treasury held that justice could rent interim space notwithstanding the statutory prohibition. while the decision was',
5649:'not couched in terms of the expenditure being “absolutely essential,” it said basically the same thing. since justice could not',
5650:'cease to function during the construction period, the appropriation for construction of the new building could not be fulfilled without',
5651:'the expenditure for interim space. the third test is that an expenditure cannot be authorized under a necessary expense theory',
5652:'if it is otherwise provided for under a more specific appropriation or statutory funding mechanism. it is well settled that',
5653:'even an expenditure that may be reasonably related to a general appropriation may not be paid out of that appropriation',
5654:'where the expenditure falls specifically within the scope of another appropriation. see, e.g., b291241, oct. 8, 2002; b290005, july 1,',
5655:'2002; b289209, may 31, 2002. the fact that the more specific appropriation may be exhausted is immaterial. thus, in b139510,',
5656:'may 13, 1959, the navy could not use its shipbuilding appropriation to deepen a channel in the singing river near',
5657:'pascagoula, mississippi, to permit submarines then under construction to move to deeper water. the reason was that this was a',
5658:'function for which funds were traditionally appropriated to the corps of engineers, not the navy. the fact that appropriations had',
5659:'not been made in this particular instance was irrelevant. similarly, the navy could not use appropriations made for the construction',
5660:'or procurement of vessels and aircraft to provide housing for civilian employees engaged in defense production activities because funds for',
5661:'that purpose were otherwise available. 20 comp. gen. 102 1940. in another case, federal prison industries could use its revolving',
5662:'fund to build industrial facilities incident to a federal prison, or to build a residential camp for prisoners employed in',
5663:'federal public works projects, but could not use that fund to construct other prison facilities because such construction was statutorily',
5664:'provided for elsewhere. b230304, mar. 18, 1988. page 429 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose in',
5665:'these cases, the existence of a more specific source of funds, or a more specific statutory mechanism for getting them,',
5666:'is the governing factor and overrides the “necessary expense” considerations. 2. general operating an illustration of how the necessary expense',
5667:'concept works common to all expenses agencies is the range of expenditures permissible under general operating appropriations. all agencies, regardless',
5668:'of program differences, have certain things in common. specifically, they all have employees, occupy space in buildings, and maintain an',
5669:'office environment. to support these functions, they incur a variety of administrative expenditures. some are specifically authorized by statute; others',
5670:'flow logically from the requirements of maintaining a workforce. all agencies receive general operating appropriations for these administrative expenses. depending',
5671:'largely on the size of the agency, they may be separate lumpsum appropriations or may be combined with program funds.',
5672:'the most common but not the only form of general operating appropriation is entitled “salaries and expenses s&e.” although an',
5673:'s&e appropriation may contain earmarks, for the most part it does not specify the types of “expenses” for which it',
5674:'is available. employee salaries, together with related items such as agency contributions to health insurance and retirement, of course, comprise',
5675:'the bulk of an s&e appropriation. this section summarizes some of the other items chargeable to s&e funds as necessary',
5676:'expenses of running the agency that are not covered elsewhere in this chapter. a. training training of government employees is',
5677:'governed by the government employees training act, 5 u.s.c. chapter 41, aspects of which are discussed in several places in',
5678:'this chapter. the authority of the government employees training act is broad, but it is not unlimited. for example, tryouts',
5679:'for the u.s. olympic shooting team do not constitute training under the act. 68 comp. gen. 721 1989. nor do',
5680:'routine meetings, however formally structured, qualify as training. 68 comp. gen. 606 1989. see also 68 comp. gen. 604 1989;',
5681:'b272280, may 29, 1997 examination expenses that substitute for a college course are covered where the skipped course is part',
5682:'of an approved training program for which the agency would otherwise pay. for an entity not covered by the definition',
5683:'of “agency” in the act, the authority to conduct training is limited. the particular training program must be 1 necessary',
5684:'to carry out the purpose for which the appropriation page 430 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations:',
5685:'purpose is made, 2 for a period of brief duration, and 3 special in nature. 36 comp. gen. 621 1957',
5686:'including extensive citations to earlier decisions. see also 68 comp. gen. 127 1988. training of nonfederal personnel, where necessary to',
5687:'the implementation of a federal program, is a straightforward “necessary expense” question under the relevant program appropriation. e.g., 18 comp.',
5688:'gen. 842 1939. in b148826, july 23, 1962, the comptroller general held that the defense department could pay $1 each',
5689:'to students participating in a civil defense training course as consideration for a release from liability. b. travel reimbursement for',
5690:'travel expenses incurred on official travel is now authorized by statute. e.g., 5 u.s.c. § 5702. however, even before the',
5691:'legislation was enacted, expenses incurred on authorized official travel were reimbursable as a necessary expense. 4 comp. dec. 475 1898.',
5692:'of course there are limits, and expenses are reimbursable only to the extent authorized by statute and implementing regulations. thus,',
5693:'in an early case, expenses of a groom and valet incurred by an army officer in belgium could not be',
5694:'regarded as necessary travel expenses and therefore could not be reimbursed from army appropriations. 21 comp. dec. 627 1915. seniorlevel',
5695:'officials frequently travel for political purposes. as the justice department has pointed out, it is often impossible to neatly categorize',
5696:'travel as either purely business or purely political. to the extent it is possible to distinguish, appropriated funds should not',
5697:'be used for political travel. 6 op. off. legal counsel 214 1982. gao has conducted occasional reviews in this area,',
5698:'and has commented on the lack of legally binding guidelines against which to evaluate particular expenditures. e.g., u.s. general accounting',
5699:'office, review of white house and executive agency expenditures for selected travel, entertainment, and personnel costs, afmd8136 washington, d.c.: mar.',
5700:'6, 1981; review of the propriety of white house and executive agency expenditures for selected travel, entertainment, and personnel costs,',
5701:'fgmsd8113 washington, d.c.: oct. 20, 1980. finally, there are situations in which expenses of congressional travel may be charged to',
5702:'the appropriations of other agencies. under 31 u.s.c. § 1108g: page 431 gao04261sp appropriations law—vol. i chapter 4 availability of',
5703:'appropriations: purpose “amounts available under law are available for field examinations of appropriation estimates. the use of the amounts is',
5704:'subject only to regulations prescribed by the appropriate standing committees of congress.” thus, travel expenses of congressional committee members and',
5705:'staff incident to “field examinations” of appropriation requests may be charged to the agency whose programs and budget are being',
5706:'examined. b214611, apr. 17, 1984; b129650, jan. 2, 1957. before the above provision was enacted as permanent legislation, similar provisions',
5707:'had appeared for many years in various appropriation acts. see 6 comp. gen. 836 1927; 23 comp. dec. 493 1917.',
5708:'travel expenses of congressional spouses members and staff may not be paid from appropriated funds. b204877, nov. 27, 1981. federal',
5709:'employees may retain promotional travel benefits, including frequent flyer miles or upgrades, when the benefits are earned as a result',
5710:'of official travel and if the promotional item is obtained under the same terms as those offered the general public',
5711:'and at no additional cost to the government. pub. l. no. 107107, div. a, title xi, § 1116, 115 stat.',
5712:'1012, 1241 dec. 28, 2001. c. postage expenses agencies are required to reimburse the postal service for mail sent by',
5713:'or to them as penalty mail.18 reimbursement is to be made “out of any appropriations or funds available to them.”',
5714:'39 u.s.c. § 3206a. this statute amounts to an exception to the general purpose statute, 31 u.s.c. § 1301a, in',
5715:'that the expenditure may be charged to any appropriation available to the agency. penalty mail costs do not have to',
5716:'be charged to the particular bureau or activity that generated the cost. 33 comp. gen. 206 1953. by virtue of',
5717:'this statutory authority, the use of appropriations for one component of an agency to pay penalty mail costs of another',
5718:'component funded under a separate appropriation does not constitute an unauthorized transfer of appropriations. 33 comp. gen. 216 1953. the',
5719:'same principle applies to reimbursement for registry fees. 36 comp. gen. 239 1956. 18 penalty mail means official mail, other',
5720:'than franked mail, which is authorized by law to be transmitted in the mail without prepayment of postage. 32 u.s.c.',
5721:'§ 32011. page 432 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose d. books and periodicals expenditures for',
5722:'books and periodicals are evaluated under the necessary expense rule. thus, the american battle monuments commission could use its salaries',
5723:'and expenses s&e appropriation to buy books on military leaders to help it decide what people and events to memorialize.',
5724:'27 comp. gen. 746 1948.19 the national science foundation could subscribe to a publication called “supervisory management” to be used',
5725:'as training material in a supervisory training program under the government employees training act. if determined necessary to the course,',
5726:'the subscription could be paid from the foundations s&e appropriation. 39 comp. gen. 320 1959. similarly, the interior department’s mining',
5727:'enforcement and safety administration could subscribe to the “federal employees news digest” if determined to be necessary in carrying out',
5728:'the agency’s statutory functions. 55 comp. gen. 1076 1976. subsequently, when the federal employees news digest came under some criticism,',
5729:'it became necessary to explain that a decision such as 55 comp. gen. 1076 is neither an endorsement of a',
5730:'particular publication nor an exhortation for agencies to buy it. it is merely a determination that the purchase is legally',
5731:'authorized. b185591, feb. 7, 1985. in b171856, mar. 3, 1971, the interior department was permitted to purchase newspapers to send',
5732:'to a number of inuit families in alaska. members of the families had been transported to washington state to help',
5733:'in fighting a huge fire, and the newspapers were seen as necessary to keep the families advised of the status',
5734:'of the operation and also as a measure to encourage future volunteerism. e. miscellaneous items we have viewed certain civic,',
5735:'charitable, and similar community support incident to the federal activities involving limited use of agency resources and employee time as',
5736:'workplace permissible expenses. for instance, agencies may spend their appropriations, within reason, to cooperate with governmentsanctioned charitable fundraising campaigns, including',
5737:'such things as permitting solicitation during working hours, preparing campaign instructions, and distributing campaign materials. 67 comp. gen. 254 1988',
5738:'combined federal campaign. see also b155667, jan. 21, 1965; b154456, aug. 11, 19 decisions in this area prior to 1946',
5739:'applying a stricter standard, such as 21 comp. gen. 339 1941 and 22 comp. dec. 317 1916, should be disregarded',
5740:'as they reflected prohibitory legislation enacted on march 15, 1898 30 stat. 316 and repealed in 1946. page 433 gao04261sp',
5741:'appropriations law—vol. i chapter 4 availability of appropriations: purpose 1964; b119740, july 29, 1954. similarly, some use of employee time',
5742:'and agency equipment can occur to carry out limited national guard and reserve functions or to assist with adoptaschool programs.',
5743:'71 comp. gen. 469 1992; b277678, jan. 4, 1999. this authority, however, does not extend to giving tshirts to combined',
5744:'federal campaign contributors. 70 comp. gen. 248 1991. an agency may use its general operating appropriations to fund limited amounts',
5745:'of promotional material in support of the united states savings bond campaign. b225006, june 1, 1987. support that agencies are',
5746:'authorized by law to provide to federal credit unions may, if administratively determined to be necessary, include automatic teller machines.',
5747:'66 comp. gen. 356 1987. the justification was adequate in that case because the facility in question operated on three',
5748:'shifts 7 days a week and the credit union could not remain open to accommodate workers on all shifts. the',
5749:'salaries and expenses appropriation of the internal revenue service irs could be used to procure credit bureau reports if administratively',
5750:'determined to be necessary in connection with investigating applicants for employment with irs. b117975, dec. 29, 1953. irs was authorized',
5751:'to undertake employee counseling and referral programs related to eldercare. the expenditure was justified under 5 u.s.c. § 7901, which',
5752:'authorized “preventative programs related to health.” 71 comp. gen. 527 1992. similar mental health referrals are discussed at length in',
5753:'section c.13 of this chapter addressing personal expenses. outplacement assistance to employees may be regarded as a legitimate matter of',
5754:'agency personnel administration if the expenditures are found to benefit the agency and are reasonable in amount. 68 comp. gen.',
5755:'127 1988; b272040, oct. 29, 1997. the government employees training act authorizes training in preparation for placement in another federal',
5756:'agency under conditions specified in the statute. 5 u.s.c. § 4103b. otherwise unrestricted operating appropriations are available to protect a',
5757:'government official who has been threatened or is otherwise in danger, if the agency determines that the risk impairs the',
5758:'official’s ability to carry out his or her duties and hence adversely affects the efficient functioning of the agency. for',
5759:'example, the u.s. customs service may use appropriated funds to purchase home and automobile security devices for agents stationed in',
5760:'page 434 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose puerto rico and the u.s. virgin islands where',
5761:'they are needed as a result of the agent’s law enforcement activities. b251710, july 7, 1993. see also 71 comp.',
5762:'gen. 4 1991. also, certain officials, specified in 18 u.s.c. § 3056a, are entitled to secret service protection. 54 comp.',
5763:'gen. 624 1975, modified by 55 comp. gen. 578 1975. payment of an honorarium to an invited guest speaker other',
5764:'than a government employee is permissible under a necessary expense rationale. see a69906, mar. 16, 1936 payment of an honorarium',
5765:'by an agency of the district of columbia government was found to be an allowable administrative expense. see also b20517,',
5766:'sept. 24, 1941. fees for the notarization of documents are properly payable from appropriated funds where no government notary is',
5767:'available. b33846, apr. 27, 1943. an agency’s appropriations are not available to reimburse the civil service retirement fund for losses',
5768:'due to overpayments to a retired employee resulting from the agency’s erroneous processing of information. 54 comp. gen. 205 1974.',
5769:'the federal reserve board could not match employee contributions to an employee savings plan established by the board. b174174, sept.',
5770:'24, 1971. c. specific purpose authorities and limitations 1. introduction this section will explore a number of specific topics concerning',
5771:'purpose availability. sections c.2 through c.16 cover areas that have generated considerable activity over the years and require a somewhat',
5772:'detailed presentation. while our topic selection is designed to highlight certain restrictions, our objective is to describe what is authorized',
5773:'as well as what is unauthorized. most of the topics are a mixture of both. restrictions on the purposes for',
5774:'which appropriated funds may be spent come from a variety of sources. some may stem from the constitution itself. an',
5775:'example is the prohibition on paying certain state and local taxes, page 435 gao04261sp appropriations law—vol. i chapter 4 availability',
5776:'of appropriations: purpose discussed in section c.15. others are found in permanent legislation, such as the restrictions on residential and',
5777:'long distance telephone service discussed in section c.16. a common source of purpose restrictions is the appropriation act itself. restrictions',
5778:'are often included as provisos to the appropriating language or as general provisions or “riders.” for example, b202716, oct. 29,',
5779:'1981, construes an appropriation act restriction prohibiting the use of legal services corporation funds for the representation of illegal aliens.',
5780:'another example is the restriction on “publicity and propaganda” expenditures found in some appropriation acts, discussed in section c.11. finally,',
5781:'a number of restrictions have evolved from decisions of the comptroller general and his predecessor, the comptroller of the treasury.',
5782:'an example is the government’s policy on selfinsurance, section c.10. the restrictions that have evolved administratively usually date back to',
5783:'the nineteenth century, are firmly embedded in appropriations law, and for the most part have been recognized by congress at',
5784:'least implicitly by the practice of legislating the occasional exception. purpose restrictions will commonly prohibit the use of funds for',
5785:'an item except “under specific statutory authority,” or except under “an appropriation specifically available therefore,” or similar language. the “specific',
5786:'authority” needed to create an exception in these situations need not be found in the appropriation act itself, but may',
5787:'be contained in authorizing or enabling legislation as long as it is clearly applicable to the appropriation sought to be',
5788:'charged. 23 comp. gen. 859 1944; 16 comp. gen. 773 1937. 2. attendance at meetings and conventions meetings have become',
5789:'a way of life in contemporary american society and the federal bureaucracy is no exception. it seems that there are',
5790:'meetings on just about everything. quite often they can be very useful. they can also be expensive. it is no',
5791:'surprise that lots of meetings are held in places like honolulu and san francisco. this section will explore when appropriated',
5792:'funds may be used to send people, government employees and others, to meetings. congress has passed a number of statutes',
5793:'in this area and the cases usually involve the interpretation and application of the various statutory provisions. for purposes of',
5794:'this discussion, the term “meeting” includes other designations such as conference, congress, convention, seminar, symposium, and workshop; what the particular',
5795:'gathering is called is irrelevant. page 436 gao04261sp appropriations law—vol. i a. government employees chapter 4 availability of appropriations: purpose',
5796:'1 statutory framework to understand the law in this area, it is necessary to understand the interrelationship of several statutes.',
5797:'listed in the order of their enactment, they are: 5 u.s.c. § 5946, 31 u.s.c. § 1345, 5 u.s.c. §',
5798:'4109, and 5 u.s.c. § 4110. this interrelationship is best seen by outlining the statutory evolution. the first piece of',
5799:'legislation was enacted in 1912. as relevant here, section 8 of the act of june 26, 1912 pub. l. no.',
5800:'201, ch. 182, 37 stat. 139, 184, prohibited the payment, without specific statutory authority, of the expenses of attendance of',
5801:'an individual at meetings or conventions of members of a society or association. with exceptions to be noted below, this',
5802:'statute is now found at 5 u.s.c. § 5946. for the most part, it has always been viewed as applying',
5803:'to attendance by federal employees at nonfederally sponsored meetings. see, e.g., b140912, nov. 24, 1959. there were many early cases',
5804:'under the 1912 statute. since the prohibition is directed at meetings of a “society or association,” other types of meetings',
5805:'were not covered. thus, the federal power commission could, if determined to be in the furtherance of authorized activities, send',
5806:'a representative to the world power conference in basle, switzerland since it was not a meeting of a “society or',
5807:'association.” 5 comp. gen. 834 1926. similarly, the statute did not prohibit travel by u.s. attorneys “to attend a conference',
5808:'of attorneys not banded together into a society or association, but called together for one meeting only for conference in',
5809:'a matter bearing directly on their official duties.” 1 comp. gen. 546 1922. however, if a given gathering was viewed',
5810:'as a meeting or convention of a society or association, the expenses were consistently disallowed. e.g., 16 comp. gen. 252',
5811:'1936; 5 comp. gen. 599 1926, aff’d, 5 comp. gen. 746 1926; 3 comp. gen. 883 1924. gao often told',
5812:'agencies in those days that if they thought attendance would be in the interest of the government, they should present',
5813:'the matter to congress. e.g., 5 comp. gen. at 747. in fact congress granted specific authority to a number of',
5814:'agencies for an example, see b136324, aug. 1, 1958, and later, as will be seen below, enacted general legislation that',
5815:'renders 5 u.s.c. § 5946, as it relates to attendance at meetings, of very limited applicability. the next congressional venture',
5816:'in this field was public resolution no. 2, 74th congress, ch. 4, 49 stat. 19 feb. 2, 1935, aimed primarily',
5817:'at restricting the use of appropriated funds to pay expenses of nongovernment persons page 437 gao04261sp appropriations law—vol. i chapter',
5818:'4 availability of appropriations: purpose at conventions. this statute, now codified at 31 u.s.c. § 1345, provides in relevant part:',
5819:'“except as specifically provided by law, an appropriation may not be used for travel, transportation, and subsistence expenses for a',
5820:'meeting. this section does not prohibit— “1 an agency from paying the expenses of an officer or employee of the',
5821:'united states government carrying out an official duty; . . .” significantly, 31 u.s.c. § 1345 does not apply to',
5822:'government employees in the discharge of official duties. thus, as of 1935, attendance by private parties at government expense was',
5823:'prohibited by 31 u.s.c. § 1345; attendance by government employees was prohibited by the 1912 statute for meetings of a',
5824:'society or association regardless of the relationship to official duties, and by 31 u.s.c. § 1345 for other types of',
5825:'meetings unless attendance was in the discharge of official duties. the next relevant legislative action came in 1958 with two',
5826:'provisions of the government employees training act, pub. l. no. 85507, 72 stat. 327 july 7, 1958. section 10 of',
5827:'the act, 5 u.s.c. § 4109, authorizes payment of certain expenses in connection with authorized training. section 19b of the',
5828:'act, 5 u.s.c. § 4110, makes travel appropriations available for expenses of attendance at meetings, “which are concerned with the',
5829:'functions or activities for which the appropriation is made or which will contribute to improved conduct, supervision, or management of',
5830:'the functions or activities.” when title 5 of the united states code was recodified in 1966, qualifying language was added',
5831:'to 5 u.s.c. § 5946 to make it clear that the requirement for specific statutory authority no longer applied to',
5832:'the extent payment was authorized by 5 u.s.c. § 4109 or § 4110. see 38 comp. gen. 800 1959. with',
5833:'this statutory framework as background, it is now possible to attempt to state some rules. a government employee may attend',
5834:'a nongovernmentsponsored meeting at government expense 1 if it is part of an authorized training program under 5 u.s.c. §',
5835:'4109 or 2 if it is related to agency functions or management under 5 u.s.c. § 4110. page 438 gao04261sp',
5836:'appropriations law—vol. i chapter 4 availability of appropriations: purpose for example, the labor department could use its salaries and expenses',
5837:'appropriation to pay the attendance fees of its director of personnel at a conference of the american society of training',
5838:'directors since the meeting qualified under the broad authority of 5 u.s.c. § 4110. 38 comp. gen. 26 1958. the',
5839:'expenses of attendance may not be paid if the employing agency refuses to authorize attendance, even if authorization would have',
5840:'been permissible under the statute. b164372, june 12, 1968. this was sort of an odd case. an employee wanted to',
5841:'attend a conference in tokyo, japan. the agency refused authorization because the employee had announced his intention to resign after',
5842:'the conference. the employee went anyway, and for some reason filed a claim for his expenses. gao said no. where',
5843:'attendance is authorized, the fact that the sponsor is a profitmaking organization is immaterial. b161777, july 11, 1967. the express',
5844:'inclusion of “management” in 5 u.s.c. § 4110 is significant. before the government employees training act, gao had strictly construed',
5845:'grants of statutory authority for attendance at meetings as excluding meetings concerning general problems such as management that are common',
5846:'to all agencies. 37 comp. gen. 335 1957. this type of meeting is now expressly authorized. if neither 5 u.s.c.',
5847:'§ 4109 nor 5 u.s.c. § 4110 applies and the meeting is a meeting of a “society or association,” then',
5848:'it is subject to the prohibition of 5 u.s.c. § 5946. the continuing viability of 5 u.s.c. § 5946 requires',
5849:'further elaboration. gao held in 38 comp. gen. 800 1959 that the government employees training act repealed section 5946 by',
5850:'implication to the extent that the two statutes were incompatible. while this is true, some of the language in that',
5851:'decision has generated some confusion. the decision stated that the restriction in section 5946 “is inapplicable so far as agencies',
5852:'and personnel covered by the government employees training act are concerned,” and that those agencies no longer need to obtain',
5853:'specific appropriation provisions to authorize attendance at meetings. of course this statement is based on the premise that an agency',
5854:'is not likely to seek, nor is congress likely to grant, specific appropriation authority for an agency to send its',
5855:'employees to meetings which have nothing to do with agency business. thus, it is not accurate to say that section',
5856:'5946 simply no longer applies to civilian employees of the government. it does apply, except that its scope is considerably',
5857:'reduced by virtue of the broad authority of the government employees training act. if attendance cannot be authorized under either',
5858:'of the acts provisions, 5 u.s.c. § 5946 still applies. this relationship is page 439 gao04261sp appropriations law—vol. i chapter',
5859:'4 availability of appropriations: purpose correctly stated in 55 comp. gen. 1332, 1335–36 1976. for cases where expenses were disallowed',
5860:'because they could not be justified under these standards, see b202028, may 14, 1981; b195045, feb. 8, 1980; and b166560,',
5861:'may 27, 1969. it is also possible for 31 u.s.c. § 1345 to apply to government employees, although it would',
5862:'be the rare case. as noted above, 31 u.s.c. § 1345 does not apply to government employees in the discharge',
5863:'of official duties. a number of earlier cases will be found that cite the statute in passing for this proposition.',
5864:'e.g., 27 comp. gen. 627 1948; 26 comp. gen. 53 1946; 22 comp. gen. 315 1942; b117137, sept. 25, 1953;',
5865:'b87691, aug. 2, 1949; b80621, oct. 8, 1948; b77404, june 29, 1948; b77613, june 23, 1948; b13888, dec. 10, 1940.20',
5866:'since the exception for government employees in 31 u.s.c. § 1345 is limited to the discharge of official duties, the',
5867:'statutory prohibition applies to government employees to the extent that a given meeting is not part of the discharge of',
5868:'official duties. if a meeting is not part of authorized training under 5 u.s.c. § 4109 and cannot qualify as',
5869:'related to agency functions under 5 u.s.c. § 4110, it would certainly not be within the exception in 31 u.s.c.',
5870:'§ 1345 for the discharge of official duties. if the meeting is a meeting of a “society or association,” it',
5871:'is, as noted above, subject to 5 u.s.c. § 5946. if the meeting is not a meeting of a society',
5872:'or association and is not within the exception for the discharge of official duties, 31 u.s.c. § 1345 would apply.',
5873:'an example of a situation in which this rationale might apply is b195045, feb. 8, 1980, in which attendance expenses',
5874:'at an executive board meeting of the combined federal campaign were disallowed. the case was decided on the basis of',
5875:'regulations and prior decisions. 2 inability to attend if an employee is scheduled to participate in a meeting or conference',
5876:'and is unable to attend, the government may be liable for attendance fees in certain situations. two cases will illustrate.',
5877:'20 all of these cases also involve the pregovernment employees training act version of 5 u.s.c. § 5946 and may',
5878:'no longer be valid to that extent. the editors have made no attempt to examine each of the cases from',
5879:'this perspective. thus, while the pre1958 cases remain valid to the limited extent that they involve 31 u.s.c. § 1345,',
5880:'the results in those cases may no longer apply in view of the subsequent enactment of 5 u.s.c. §§ 4109',
5881:'and 4110. page 440 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose in b159059, june 28, 1966, an',
5882:'interior department employee had been accepted to attend an energy seminar. the seminar announcement provided a cutoff date for cancellation',
5883:'of reservations but permitted substitutions. due to the press of other necessary work, the employee did not attend the seminar,',
5884:'nor did he send a substitute or request cancellation before the cutoff date. gao found that the sponsors acceptance of',
5885:'the employees application, which had been duly approved in this particular case, the applicant was also the approving official, obligated',
5886:'the government to pay the seminar fee subject to timely cancellation. since the agency failed to give timely notice of',
5887:'cancellation, it was liable for the seminar fee. in another 1966 case, a defense department employee was scheduled to attend',
5888:'a training seminar in new york but a severe snowstorm prevented him from leaving washington. by washington standards, this could',
5889:'have been 2 inches. since the employee’s nonattendance was in no way attributable to the organization conducting the seminar, gao',
5890:'concluded citing b159059 that the seminar fee should be paid. gao rejected a contention that the government’s obligation should be',
5891:'excused on the grounds of impossibility the employee’s nonattendance resulted from natural forces since the arrangement permitted substitution of personnel.',
5892:'b159820, sept. 30, 1966. 3 federally sponsored meetings federally sponsored meetings for employees intraagency or interagency, such as management or',
5893:'planning seminars, are not prohibited by 5 u.s.c. § 5946 since they are not meetings of a “society or association,”',
5894:'nor are they prohibited by 31 u.s.c. § 1345 because they concern the discharge of official duties. the authority for',
5895:'this type of meeting is essentially a “necessary expense” question. an increasingly common type of agency meeting is the “retreat',
5896:'type” conference. in this situation, some agency official with authority to do so determines that the participants should get away',
5897:'from their normal work environment and its associated interruptions such as telephones. frequently, they need to get just far enough',
5898:'away to justify the payment of per diem allowances. while this type of meeting may be criticized as extravagant, it',
5899:'is within the agency’s administrative discretion under the necessary expense rule and therefore not illegal. see b193137, july 23, 1979.',
5900:'page 441 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose agency meetings at or near the participant’s normal',
5901:'duty station may present special problems with respect to reimbursement for meals. in many cases, meals or snacks will be',
5902:'unauthorized even though there is nothing improper about conducting the meeting itself. this area is discussed in detail in this',
5903:'chapter, section c.5. 4 rental of space in district of columbia originally enacted in 1877 act of march 2, 1877,',
5904:'ch. 106, 19 stat. 370, 40 u.s.c. § 8141 now provides: “a contract shall not be made for the rent',
5905:'of a building, or part of a building, to be used for the purposes of the federal government in the',
5906:'district of columbia until congress enacts an appropriation for the rent. this section is deemed to be notice to all',
5907:'contractors or lessors of the building or a part of a building.” the statute does not prohibit the procurement of',
5908:'shortterm conference facilities if otherwise proper. 54 comp. gen. 1055 1975. in rendering this decision, which overruled several earlier cases,',
5909:'the comptroller general relied heavily on the federal property management regulations, in which the general services administration construed the procurement',
5910:'of short term conference facilities as a service contract rather than a rental contract. however, the statute does prohibit the',
5911:'procurement of lodging accommodations in the district of columbia in connection with a meeting or conference without specific statutory authority.',
5912:'56 comp. gen. 572 1977, modified and aff’d, b159633, sept. 10, 1974; 49 comp. gen. 305 1969.21 in 56 comp.',
5913:'gen. 572, gao approved payment to the hotel of the difference between full per diem and the reduced per diem',
5914:'actually paid to the participating employees. this is because the agency could, without violating the statute, have paid full per',
5915:'diem to the employees if they had made the arrangements themselves on an individual basis. thus, the difference represented a',
5916:'cost the agency would have properly incurred had it not procured the accommodations directly. 21 one of the decisions listed',
5917:'as overruled in 54 comp. gen. 1055 was 49 comp. gen. 305. however, the overruling action was later recognized to',
5918:'be erroneous and 49 comp. gen. 305 was reinstated in 56 comp. gen. 572, 574. page 442 gao04261sp appropriations law—vol.',
5919:'i chapter 4 availability of appropriations: purpose 5 military personnel attendance at meetings by military personnel is governed by 37',
5920:'u.s.c. § 412: “appropriations of the department of defense that are available for travel may not, without the approval of',
5921:'the secretary concerned or his designee, be used for expenses incident to attendance of a member of an armed force',
5922:'under that department at a meeting of a technical, scientific, professional, or similar organization.” this statute, designed to provide a',
5923:'broad exception for the defense department from 5 u.s.c. § 5946, originated as an appropriation act rider in the mid1940s',
5924:'and was enacted as permanent legislation by section 605 of the department of defense appropriation act for 1954, 67 stat.',
5925:'349 aug. 1, 1953. the government employees training act, enacted in 1958 and discussed above, applies to civilian employees of',
5926:'the military departments but not to members of the uniformed services. 38 comp. gen. 312 1958. accordingly, the comptroller general',
5927:'held in 1959 that the administrative approval specified in 37 u.s.c. § 412 was no longer required for civilian employees',
5928:'covered by the government employees training act. however, the requirement of 37 u.s.c. § 412 remains applicable to members of',
5929:'the uniformed services. 38 comp. gen. 800 1959. see also 55 comp. gen. 1332, 1335 1976. the recodification of title',
5930:'37 of the united states code in 1962 recognized this distinction and reworded the statute to its present form so',
5931:'it would apply only to members of the armed forces. the administrative approval required by the statute is a prerequisite',
5932:'to the availability of the appropriation, and has the effect of removing the appropriation from the prohibition of 5 u.s.c.',
5933:'§ 5946 to the extent of such approval. 34 comp. gen. 573, 575 1955. oral approval, if satisfactorily established by',
5934:'the record, is sufficient to meet the requirement of the statute. b140082, aug. 19, 1959. however, where implementing departmental regulations',
5935:'establish more stringent requirements, such as advance approval in writing, the regulations will control. b139173, june 2, 1959. page 443',
5936:'gao04261sp appropriations law—vol. i b. nongovernment personnel chapter 4 availability of appropriations: purpose the administrative approval requirement of 37 u.s.c.',
5937:'§ 412 does not apply to meetings sponsored by a federal department or agency. 50 comp. gen. 527 1971. 1',
5938:'31 u.s.c. § 1345 quoted previously, 31 u.s.c. § 1345 prohibits the payment of travel, transportation, or subsistence expenses of',
5939:'private parties at meetings without specific statutory authority. the comptroller general set the tone for gao’s approach to 31 u.s.c.',
5940:'§ 1345 in two cases decided shortly after the statute was enacted. in 14 comp. gen. 638 1935, the comptroller',
5941:'held that the federal housing administration fha could not pay the travel and lodging expenses for attendance at meetings of',
5942:'private citizens who were cooperating with the fha in a campaign to encourage the repair and modernization of real estate.',
5943:'gao had no difficulty in finding that the statute barred payment: “there seems very little if any room for doubt',
5944:'as to the reasonable meaning and legal effect of [31 u.s.c. § 1345]. simply stated, it is that no convention',
5945:'or other form of assemblage or gathering may be lodged, fed, conveyed, or furnished transportation at government expense unless authority',
5946:'therefor is specifically granted by law.” id. at 640 explanatory language provided. a few months later, relying on 14 comp.',
5947:'gen. 638, the comptroller general held similarly that 31 u.s.c. § 1345 prohibited the american battle monuments commission from providing',
5948:'transportation and refreshments for private individuals at monument dedication ceremonies in europe. 14 comp. gen. 851 1935. other early decisions',
5949:'applying the statutory prohibition are 15 comp. gen. 1081 1936; b53554, nov. 6, 1945; b27441, aug. 25, 1942; and a66869,',
5950:'jan. 31, 1936. some more recent cases in which gao found expenditures prohibited by 31 u.s.c. § 1345 are summarized',
5951:'below: the environmental protection agency epa could not pay the transportation and lodging expenses of state officials attending a national',
5952:'solid waste management association convention. b166506, july 15, 1975, aff’d, 55 comp. gen. 750 1976. page 444 gao04261sp appropriations law—vol.',
5953:'i chapter 4 availability of appropriations: purpose the mine safety and health administration, department of labor, could not pay travel',
5954:'and subsistence expenses of miners and mine operators attending safety and health training seminars. b193644, july 2, 1979. maritime administration',
5955:'could not pay transportation and subsistence expenses of nonfederal participants in a 2week seminar for general publication maritime writers. b168627,',
5956:'may 26, 1970. navy could not pay for a dinner and cocktail party for nongovernment minority group leaders. b176806o.m., sept.',
5957:'18, 1972. national highway traffic safety administration could not pay travel and lodging expenses of state officials at a workshop',
5958:'on odometer fraud. 62 comp. gen. 531 1983. gao has not attempted to define precisely what types of gatherings are',
5959:'within the scope of the statutory prohibition. the determination is made on a casebycase basis. the statutory language is broad',
5960:'and could presumably be construed to cover any situation where two or more persons are gathered together in one place.',
5961:'however, gao has never adopted such a rigid view. for example, in 45 comp. gen. 476 1966, a certifying officer',
5962:'of the department of agriculture asked whether he could “properly certify for payment a voucher covering payment for rental of',
5963:'a chartered bus for the transportation of female guests from albuquerque to grants, new mexico, and return, for purposes of',
5964:'providing social and recreational services to job corps enrollees.” this is what the case says. the editors are not making',
5965:'it up. the comptroller general found that this was simply not the kind of “meeting” 31 u.s.c. § 1345 was',
5966:'intended to prohibit. further, there was statutory authority for providing “recreational services” for the enrollees. therefore, the expenditure was not',
5967:'illegal. the decision does not specify precisely what “social and recreational services” the women were bused in to provide. see',
5968:'also 72 comp. gen. 229 1993 the department of defense dod may pay for travel expenses from the united states',
5969:'to germany for recruiters from public schools to attend job fairs for teachers at dod dependent schools dodds because job',
5970:'fairs and oneonone interviews between recruiters and dodds teachers are not the type of “meeting” covered by section 1345. as',
5971:'noted, the prohibition of 31 u.s.c. § 1345 can be overcome by specific statutory authority. an example of such authority',
5972:'is language in an appropriation act making the appropriation available for “expenses of page 445 gao04261sp appropriations law—vol. i chapter',
5973:'4 availability of appropriations: purpose attendance at meetings” or similar language.22 see 72 comp. gen. 146 1993; 34 comp. gen.',
5974:'321 1955; 24 comp. gen. 86 1944; 17 comp. gen. 838 1938; 16 comp. gen. 839 1937; b117137, sept. 25,',
5975:'1953. this is the same language used before enactment of the government employees training act to grant exceptions from 5',
5976:'u.s.c. § 5946. in one case, lessthanspecific authority was found adequate. in 35 comp. gen. 129 1955, gao considered a',
5977:'statute that 1 provided for a “white house conference on education,” 2 specified that the conference be broadly representative of',
5978:'educators and other interested persons from all parts of the united states, and 3 authorized appropriations necessary for the “administration”',
5979:'of the act. the decision held this sufficient to make the ensuing appropriations available for the travel costs of the',
5980:'invitees. while the decision does not mention 31 u.s.c. § 1345, the distinction is readily apparent. here, holding the conference',
5981:'was more than merely a legitimate means of implementing the enabling statute; it was the very purpose of the statute',
5982:'and hence the only means. see also 35 comp. gen. 198 1955 discussing other funding issues under the same legislation.',
5983:'a more recent case applying 35 comp. gen. 129 to a similar situation is b242880, mar. 27, 1991 commission on',
5984:'interstate child support could pay lodging costs for core nonfederal invitees at a statutorily mandated national conference on interstate child',
5985:'support where the core invitees were essential to assist the commission in its statutory duties. however, general statutory authority to',
5986:'disseminate information to the public, or to promote or encourage cooperation with the private sector, or to provide technical assistance',
5987:'or education to specified segments of the private sector, is not sufficiently specific to overcome 31 u.s.c. § 1345. see',
5988:'62 comp. gen. 531 1983; b193644, july 2, 1979; b166506, july 15, 1975; b168627, may 26, 1970. a distinction must',
5989:'be drawn between the authority to sponsor a meeting and the authority to pay the types of expenses prohibited by',
5990:'31 u.s.c. § 1345. an agency may be able to do the former but not the latter. thus, in b166506,',
5991:'july 15, 1975, gao pointed out that epa could hold a solid waste management convention as a legitimate means of',
5992:'implementing its 22 in some cases, the authority has been made permanent. an example is 31 u.s.c. § 326a for',
5993:'the treasury department, construed in 37 comp. gen. 708 1958. another example is subsection 2 of 31 u.s.c. § 1345',
5994:'concerning meetings of 4h clubs, noted in b166506, july 15, 1975. page 446 gao04261sp appropriations law—vol. i chapter 4 availability',
5995:'of appropriations: purpose functions under the solid waste disposal act. what it could not do without more specific statutory authority',
5996:'was pay the travel and lodging expenses of the state participants. sponsoring the meeting itself is essentially a “necessary expense”',
5997:'question. see also 62 comp. gen. 531 1983; b239856, apr. 29, 1991. cf. 45 comp. gen. 333 1965; b147552, nov.',
5998:'29, 1961. thus, depending on the agency’s statutory authority, it may be authorized to incur such expenses as renting conference',
5999:'facilities, financing the participation of its own employees, bringing in guest speakers, both federal and nonfederal, and preparing and disseminating',
6000:'literature. the prohibition of 31 u.s.c. § 1345 comes into play only when the agency purports to pay the travel,',
6001:'transportation, or subsistence expenses of nonfederal attendees. another thing the agency may be able to do is permit the use',
6002:'of government facilities for the meeting. for example, in b168627, may 26, 1970, while the maritime administration could not pick',
6003:'up the tab for the participation of nongovernment persons at a seminar, it could permit the seminar to be held',
6004:'at the u.s. merchant marine academy. the rule, stated in that decision, is that an agency has authority to grant',
6005:'to a private individual or business a “revocable license” to use government property, subject to termination at any time at',
6006:'the will of the government, provided that such use does not injure the property in question and serves some purpose',
6007:'useful or beneficial to the government. 2 invitational travel another statute we should note is 5 u.s.c. § 5703, which',
6008:'provides: “an employee serving intermittently in the government service as an expert or consultant …or serving without pay or at',
6009:'$1 a year, may be allowed travel or transportation expenses, under this subchapter, while away from his home or regular',
6010:'place of business and at the place of employment or service.” this statute originated as an appropriation act rider in',
6011:'1945 and was enacted as permanent legislation the following year as section 5 of the administrative expenses act of 1946,',
6012:'pub. l. no. 600, ch. 744, 60 stat. 806 aug. 2, 1946. to the extent it authorizes payment in the',
6013:'socalled “invitational travel” situation—a private party called upon by the page 447 gao04261sp appropriations law—vol. i chapter 4 availability of',
6014:'appropriations: purpose government to confer or advise on government business—it represents a limited exception to 31 u.s.c. § 1345. even',
6015:'before 5 u.s.c. § 5703 was enacted, gao had recognized that a private individual “invited” by the government to confer',
6016:'on official business was entitled to reimbursement of travel expenses if specified in the request and justified as a necessary',
6017:'expense. 8 comp. gen. 465 1929; 4 comp. gen. 281 1924; a41751, apr. 15, 1932. the enactment of 31 u.s.c.',
6018:'§ 1345 in 1935 did not change this. thus, the comptroller general recognized in 15 comp. gen. 91, 92 1935',
6019:'that while the statute might prohibit the payment of expenses of private individuals called together as a group, it would',
6020:'not apply to “individuals called to washington or elsewhere for consultation as individuals.” see also a81080, oct. 27, 1936. viewed',
6021:'in this light, the 1946 enactment of 5 u.s.c. § 5703 in large measure merely gave express congressional sanction to',
6022:'a rule that had already developed in the decisions. although gao did not directly address the relationship between 5 u.s.c.',
6023:'§ 5703 and 31 u.s.c. § 1345 until 1976 55 comp. gen. 750 1976, discussed below, the relevant principles were',
6024:'established in several earlier cases. in one of gao’s earliest decisions under 5 u.s.c. § 5703, the comptroller general held',
6025:'that persons who are not government officers or employees may, “when requested by a proper officer to travel for the',
6026:'purpose of conferring upon official government matters,” be regarded as persons serving without pay and therefore entitled to travel expenses',
6027:'under 5 u.s.c. § 5703. 27 comp. gen. 183, 184 1947. see also 39 comp. gen. 55 1959. thus, the',
6028:'rule of 8 comp. gen. 465 now had a statutory basis. a critical prerequisite is this: in order to qualify',
6029:'under 5 u.s.c. § 5703, the individual must be performing a direct service for the government. 37 comp. gen. 349',
6030:'1957. once the proposition of 27 comp. gen. 183 is accepted, it is but a short step to recognizing that',
6031:'a private individual called upon to advise on government business may be called upon to do so in the form',
6032:'of making a presentation at a meeting or conference. see, for example, b111310, sept. 4, 1952, and 33 comp. gen.',
6033:'39 1953, in which payment under 5 u.s.c. § 5703 was authorized. the statute could not reasonably be limited to',
6034:'“oneonone” consultations. as stated in b196088, nov. 1, 1979: “it is not unusual for the government to invite an individual',
6035:'with a particular expertise to attend a meeting and to share page 448 gao04261sp appropriations law—vol. i chapter 4 availability',
6036:'of appropriations: purpose the benefit of his views without compensation other than by way of reimbursement for his travel and',
6037:'transportation expenses.” thus, travel expenses of private individuals “invited” to participate in meetings sponsored by the national center for productivity',
6038:'and quality of working life were properly paid under 5 u.s.c. § 5703. b192734, nov. 24, 1978. similarly, the internal',
6039:'revenue service could invoke 5 u.s.c. § 5703 to buy lunches for guest speakers invited to participate in a ceremony',
6040:'observing national black history month since the ceremony was an authorized part of the agency’s formal program to advance equal',
6041:'opportunity objectives. 60 comp. gen. 303 1981. there is a limit to this rationale and a point at which 5',
6042:'u.s.c. § 5703 collides headon with 31 u.s.c. § 1345. this point was discussed in 55 comp. gen. 750, supra,',
6043:'and reiterated in b193644, july 2, 1979. in 1976, 55 comp. gen. 750 affirmed b166506, july 15, 1975, and held',
6044:'that 31 u.s.c. § 1345 prohibited the environmental protection agency epa from paying travel and lodging expenses of state officials',
6045:'at a solid waste management convention; b193644 reached the same result for safety and training seminars for miners and mine',
6046:'operators. in both cases, the comptroller general rejected the suggestion that the expenses could somehow be authorized under the “invitational',
6047:'travel” statute. in neither case were the attendees providing a direct service for the government, even though in both cases',
6048:'the government may have derived some incidental benefit in terms of enhancement of program objectives. the following passage illustrates the',
6049:'“collision point”: “we thus do not believe that [5 u.s.c. § 5703] was ever intended to establish the proposition that',
6050:'anyone may be deemed a person serving without compensation merely because he or she is attending a meeting or convention,',
6051:'the subject matter of which is related to the official business of some federal department or agency…. we believe that',
6052:'being called upon to confer with agency staff on official business is different from attending a meeting or convention in',
6053:'which a department or agency is also interested.” 55 comp. gen. at 752–53 explanatory information provided. thus, 5 u.s.c. §',
6054:'5703 permits an agency to invite a private individual or more than one to a meeting or conference at government',
6055:'expense, if that individual is legitimately performing a direct service for the government page 449 gao04261sp appropriations law—vol. i chapter',
6056:'4 availability of appropriations: purpose such as making a presentation or advising in an area of expertise. invitational travel also',
6057:'encompasses private individuals whose travel is a necessary incident to the service that provides a direct benefit to the government.',
6058:'b259620, feb. 29, 1996 crosscultural training for spouses of federal aviation administration employees living abroad directly benefits the agency. see',
6059:'also 71 comp. gen. 9 1991; 71 comp. gen. 6 1991. however, 5 u.s.c. § 5703 is not a device',
6060:'for circumventing 31 u.s.c. § 1345. the “direct service” test is not met merely because the agency is interested in',
6061:'the subject matter of the conference or because the conference will enhance the agency’s program objectives. b251921, apr. 14, 1993',
6062:'epa cannot pay for participants who are not federal employees to attend a united nationssponsored conference on women’s contributions to',
6063:'solving environmental problems because epa does not benefit directly from their attendance. in a somewhat unique set of circumstances, however,',
6064:'gao held that the invitational travel statute permits a private individual, appointed by the government, to travel to participate in',
6065:'a state conference at government expense if the information imparted by the conference provides a direct service to the government.',
6066:'see b260896, oct. 17, 1996 dod may pay for nongovernment school board members appointed by dod pursuant to 20 u.s.c.',
6067:'§ 241h authorizing assistance for local education agencies in areas affected by federal agencies, since repealed to travel to participate',
6068:'in state school board conferences and workshops because the knowledge and information derived from participation provides a direct service for',
6069:'the government. 3 use of grant funds one of the principles of grant law is that, where a grant is',
6070:'made for an authorized grant purpose, the grant funds in the hands of the grantee are not subject generally to',
6071:'many of the restrictions applicable to the direct expenditure of appropriations, unless there is a special condition of the grant',
6072:'to the contrary. b153417, feb. 17, 1964. one of those restrictions, which does not apply to grant funds in the',
6073:'hands of a grantee, is 31 u.s.c. § 1345. for example, the american law institute could use funds provided by',
6074:'the environmental protection agency in the form of a statutorily authorized training grant to defray transportation and subsistence expenses of',
6075:'law students and practicing environmental lawyers at an environmental law seminar. 55 comp. gen. 750 1976. for this result to',
6076:'apply, the grant must be made for an authorized grant purpose and there must be no provision to the contrary',
6077:'in the grant agreement. once these conditions are met, the page 450 gao04261sp appropriations law—vol. i chapter 4 availability of',
6078:'appropriations: purpose grantee’s use of the funds is not impaired by 31 u.s.c. § 1345. however, an agency may not',
6079:'use the grant mechanism for the sole purpose of circumventing 31 u.s.c. § 1345, that is, to do indirectly that',
6080:'which it could not do directly. in other words, if an agency makes a grant for an authorized purpose, and',
6081:'the grantee sponsors a meeting or conference as a means of implementing that purpose, the grantee’s use of the funds',
6082:'will not be restrained by 31 u.s.c. § 1345. however, unless otherwise authorized, the agency could not make the grant',
6083:'for the purpose of sponsoring the conference and thereby permitting payments it could not make by direct expenditure. depending on',
6084:'the precise statutory authority involved, there may be situations in which sponsoring or helping to sponsor a conference is itself',
6085:'an authorized grant purpose. one example is b83261, feb. 10, 1949 grant to american cancer society under public health service',
6086:'act. the treatment of grant funds described above does not apply to procurement contracts. 62 comp. gen. 531 1983. see',
6087:'also b262110, mar. 19, 1997. 3. attorney’s fees a. introduction questions on the availability of appropriated funds to pay attorney’s',
6088:'fees arise in many contexts. attorney’s fees awarded by courts are discussed in chapter 14 volume iii of the second',
6089:'edition of principles of federal appropriations law. this section deals with administrative payments. traditionally, the united states has followed what',
6090:'has come to be known as the “american rule,” that each party in litigation or administrative proceedings is personally responsible',
6091:'for his or her own attorney’s fees. in other words, in the absence of statutory authority to the contrary, the',
6092:'losing party may not be forced to pay the winner’s attorney. e.g., buckhannon board & care home, inc. v. west',
6093:'virginia department of health & human resources, 532 u.s. 598, 602 2001; alyeska pipeline co. v. wilderness society, 421 u.s.',
6094:'240 1975. one application of the american rule is that a claimant who prosecutes an administrative claim against the united',
6095:'states is not entitled to reimbursement of legal fees unless authorized by statute. e.g., 57 comp. gen. 554 1978; 49',
6096:'comp. gen. 44 1969; 37 comp. gen. 485, 487 1958; page 451 gao04261sp appropriations law—vol. i chapter 4 availability of',
6097:'appropriations: purpose b. hiring of attorneys by government agencies b189045, jan. 26, 1979. to illustrate, a vendor who successfully filed',
6098:'a claim for the payment of goods sold and delivered to a navy vessel was not entitled to reimbursement of',
6099:'attorney’s fees. b187877, apr. 14, 1977. similarly nonreimbursable were legal fees incurred incident to prosecuting a claim for damages for',
6100:'breach of an oral agreement. b188607, july 19, 1977. “fairness” and “decency,” however appealing, do not compensate for the lack',
6101:'of statutory authority. 67 comp. gen. 574, 576 1988; 57 comp. gen. 856, 861 1978. payments to attorneys also arise',
6102:'in a number of situations that are, strictly speaking, not applications of the american rule, that is, which do not',
6103:'involve payment of fees to a “prevailing party.” the approach in these cases is to look first for statutory authority',
6104:'and if express statutory authority does not exist, apply the various principles discussed throughout this publication, such as the necessary',
6105:'expense doctrine. for example, a private attorney sought reimbursement for outofpocket expenses he incurred incident to a “special proceeding” initiated',
6106:'by the nuclear regulatory commission nrc to investigate charges of misconduct raised by the attorney against nrc staff members and',
6107:'by the staff members against the attorney. there was no statutory authority to reimburse the attorney, nor could the payment',
6108:'be justified as a necessary expense since it was not reasonably necessary to carrying out nrc functions. therefore, payment was',
6109:'unauthorized. b192784, jan. 10, 1979. in another case, the small business administration sba could not reimburse a bank for legal',
6110:'fees the bank incurred in protecting its interest in an sbaguaranteed loan since sba neither contracted with the attorney nor',
6111:'did it benefit from his services. b187950, apr. 26, 1977. the justice department has held that legal fees incurred by',
6112:'a cabinet nominee in connection with senate confirmation hearings, for services rendered before the nominating administration took office, could be',
6113:'paid either from presidential transition act appropriations or from private sources. 5 op. off. legal counsel 126 1981. the remainder',
6114:'of this section will discuss the situations that have been most commonly addressed in decisions of the comptroller general. during',
6115:'the first century of the republic, government agencies who needed lawyers either as counsellors or litigators simply went out and',
6116:'hired them. not only was this system expensive payments from the public treasury are not conducive to reduced fees, it',
6117:'resulted in inconsistencies in the page 452 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose government’s legal position.',
6118:'congress remedied the situation in 1870 by creating the department of justice, headed by the attorney general. act of june',
6119:'22, 1870, ch. 150, 16 stat. 162. to ensure that the objectives of the 1870 legislation would be achieved, congress',
6120:'included section 17, which a prohibited executive agencies from employing attorneys at the expense of the united states and b',
6121:'prohibited payments to attorneys, except those employed by the justice department, unless the attorney general certified that the services could',
6122:'not be performed by the justice department. the two parts of section 17 subsequently became revised statutes §§ 189 and',
6123:'365. as the federal government grew in size and complexity, it became apparent that the need for centralization of legal',
6124:'services within the justice department related primarily to the specialty of litigation. thus, with congressional approval, federal agencies regularly employed',
6125:'attorneys to serve as legal advisers. the term “attorneyadviser” is still commonly used to designate staff attorneys in many government',
6126:'agencies. when title 5 of the united states code was recodified in 1966, the successors of r.s. §§ 189 and',
6127:'365 were combined into the new 5 u.s.c. § 3106. this statute, reflecting the evolved state of the law, prohibits',
6128:'agencies, unless otherwise authorized by law, from employing attorneys “for the conduct of litigation in which the united states, an',
6129:'agency, or employee thereof is a party, or is interested.” the agencies are required to refer such matters to the',
6130:'justice department.23 thus, agencies routinely employ attorneys to provide legal services other than litigation, but may not employ attorneys as',
6131:'litigators unless they have statutory authority to conduct their own litigation or unless that authority has been delegated to them',
6132:'by the attorney general. normally, in view of the existence of the justice department and the agency’s own staff attorneys,',
6133:'the need for a federal agency to retain private counsel should rarely occur. indeed, gao has found it unauthorized for',
6134:'an agency to retain private counsel to provide legal opinions on matters within the justice department’s jurisdiction under statutes such',
6135:'as 28 u.s.c. §§ 511–514. 16 comp. gen. 1089 1937. in limited situations, the comptroller general has held that the',
6136:'retention of private attorneys as 23 many early decisions will be found dealing with r.s. §§ 189 and 365. e.g.,',
6137:'6 comp. gen. 517 1927; 5 comp. gen. 382 1925. for the most part they may be disregarded as applying',
6138:'statutory provisions that have since been significantly amended or repealed. however, decisions under r.s. §§ 189 and 365 remain valid',
6139:'to the extent they concern the elements of those statutes that survived into 5 u.s.c. § 3106. e.g., 32 comp.',
6140:'gen. 118 1952. page 453 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose experts or consultants under 5',
6141:'u.s.c. § 3109 is authorized. for example, in b192406, oct. 12, 1978, gao concluded that the then civil service commission',
6142:'could hire a private law firm under 5 u.s.c. § 3109 to serve as “special counsel” to the chairman to',
6143:'investigate alleged merit system abuses, since the matter was not covered by 5 u.s.c. § 3106 nor otherwise under the',
6144:'jurisdiction of the justice department. similarly, the navajo and hopi indian relocation commission could retain a private attorney under 5',
6145:'u.s.c. § 3109 as an independent contractor to handle matters beyond the justice department’s jurisdiction, where the workload was insufficient',
6146:'to justify hiring a fulltime attorney. b114868.18, feb. 10, 1978. for similar holdings, see boyle v. united states, 309 f.2d',
6147:'399 ct. cl. 1962 retired government patent lawyer retained on parttime basis; 61 comp. gen. 69 1981 united states advisory',
6148:'commission on public diplomacy could hire law firm to provide legal analysis of its authority and independence; b210518, jan. 18,',
6149:'1984 environmental protection agency could retain private counsel to provide independent analysis of issues relating to congressional contempt citation of',
6150:'administrator. see also b133381, july 22, 1977; b141529, july 15, 1963. in b289701, feb. 27, 2002, gao faced an unusual',
6151:'situation. a presidential appointee to the civil rights commission had been prevented from taking his seat on the commission when',
6152:'the appointee whose position he was to assume refused to give up her seat, arguing that her term had not',
6153:'expired. the justice department filed suit on behalf of the new appointee. the commission retained private legal counsel to defend',
6154:'the previous appointee and argue her case before the court. justice, citing 28 u.s.c. § 516,24 challenged the commission’s right',
6155:'to intervene in the litigation. justice objected that neither the commission nor its officers in their official capacity have a',
6156:'right to appear in litigation without the permission of the attorney general, which had not been granted. the district court',
6157:'overrode those objections, and ruled in favor of the previous appointee and the commission. at this point, after the district',
6158:'court had acted but before the appeal was completed, gao was asked whether appropriated funds were available to pay for',
6159:'outside counsel. gao agreed with justice— the commission had no authority to use appropriated funds to retain counsel in order',
6160:'to intervene in the court case in opposition to justice. in its 24 “except as otherwise authorized by law, the',
6161:'conduct of litigation in which the united states, an agency, or officer thereof is a party …is reserved to the',
6162:'officers of the department of justice, under the direction of the attorney general.” 28 u.s.c. § 516. page 454 gao04261sp',
6163:'appropriations law—vol. i chapter 4 availability of appropriations: purpose decision, the appellate court overturned the district court’s order and held',
6164:'in favor of the new appointee. united states v. wilson, 290 f.3d 347 d.c. cir. 2002. however, the circuit court',
6165:'did not address whether the commission had authority to intervene. id. at 352. the court explained: “as the united states',
6166:'has not raised this issue on appeal, …we do not decide whether this intervention was permissible.” id. the effect of',
6167:'this was to let stand the district court’s order granting commission intervention. agencies may have specific authority to retain special',
6168:'counsel in addition to the lawyers on the regular payroll. for example, appropriations for the federal communications commission have traditionally',
6169:'included “special counsel fees.” the comptroller general has construed this authority as permitting contractual arrangements with former employees as retired',
6170:'annuitants to perform functions for which they were uniquely qualified. since the appropriation provision constitutes independent authority, the contracts are',
6171:'not subject to the salary limitations of 5 u.s.c. § 3109. 53 comp. gen. 702 1974; b180708, jan. 30, 1976.',
6172:'however, the authority is limited to services of the legal profession and does not embrace “counsel” in a broader sense.',
6173:'b180708, july 22, 1975. in b290005, july 1, 2002, gao reported that the interior department’s fish and wildlife service fws',
6174:'had contracted with outside lawyers to obtain legal services in connection with various issues of personnel, labor law, and discrimination',
6175:'allegations. by law, the solicitor of the interior department is solely responsible for the legal work of the interior department,',
6176:'including the fws. 43 u.s.c. § 1455. the solicitor receives a separate annual appropriation to fund that work. fws had',
6177:'not obtained the solicitor’s approval for the legal services contracts, and the solicitor had not exercised any supervisory control over',
6178:'them. gao concluded that 1 fws had no authority to contract for legal services; 2 fws’s use of its fiscal',
6179:'year 2001 resource management appropriation for this purpose constituted a violation of the purpose statute, 31 u.s.c. § 1301a; and',
6180:'3 fws had violated the antideficiency act, 31 u.s.c. § 1341a. c. suits against government officers and employees at one',
6181:'time, government employees were considered largely immune from being sued for actions they took while performing their official duties. this',
6182:'is no longer true. for a variety of reasons, it is no longer uncommon for a government employee to be',
6183:'sued in his individual capacity for something he did or failed to do while performing his job. for example, the',
6184:'supreme court held in 1978 that an executive official has only a “qualified immunity” for socalled “constitutional torts” alleged violations',
6185:'of constitutional rights. butz v. economou, 438 u.s. 478 1978. in any event, regardless of page 455 gao04261sp appropriations law—vol.',
6186:'i chapter 4 availability of appropriations: purpose whether the employee ultimately wins or loses, he has to defend the suit',
6187:'and therefore will need professional legal representation. as a general proposition, gao considers the hiring of an attorney to be',
6188:'a matter between the attorney and the client, and this is no less true when the client is a government',
6189:'officer or employee. e.g., 55 comp. gen. 1418, 1419 1976; b242891, sept. 13, 1991. however, the decisions have long recognized',
6190:'another principle as well: where an officer of the united states is sued because of some official act done in',
6191:'the discharge of an official duty, the expense of defending the suit should be borne by the united states. e.g.,',
6192:'70 comp. gen. 647, 649 1991; 6 comp. gen. 214 1926. this section will discuss when appropriated funds may be',
6193:'used for attorney’s fees to defend a government officer or employee. generally, when a present or former employee is sued',
6194:'for actions performed as part of his official duties, his defense is provided by the justice department. in order for',
6195:'a given case to be eligible for justice department representation, the justice department must determine that the employee’s action, which',
6196:'gave rise to the suit, was performed within the scope of federal employment, and that providing representation is in the',
6197:'interest of the united states. the role of the justice department derives from a number of statutory provisions: 28 u.s.c.',
6198:'§§ 515–519, 543, and 547. see also exec. order no. 6166, § 5 1933. these provisions establish the justice department',
6199:'as the government’s litigator,25 which for the most part means representation by justice department attorneys.26 to reinforce these provisions, 5',
6200:'u.s.c. § 3106, previously noted, prohibits executive or military agencies from employing attorneys for the conduct of litigation in which',
6201:'the united states or one of its agencies or employees is a party or is interested. the agencies must refer',
6202:'such matters to the justice department. the justice department has also issued implementing regulations, found at 28 c.f.r. §§ 50.15',
6203:'and 50.16.27 this statutory and regulatory scheme is designed to encourage 25 for a discussion of the historical evolution and',
6204:'current legal basis of the attorney general’s role as “chief litigator,” see 6 op. off. legal counsel 47 1982. 26',
6205:'in addition, an executive agency may call upon the justice department for help in performing the legal investigation of any',
6206:'claim pending in that agency. 28 u.s.c. § 514. 27 for situations where the federal tort claims act is the',
6207:'exclusive remedy, see 28 c.f.r. pt. 15. page 456 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose employees',
6208:'to vigorously carry out their duties by assuring them of an adequate defense at no cost if they should be',
6209:'sued in the course of executing their responsibilities. cf. bontkowski v. smith, 305 f.3d 757, 760 7th cir. 2002 “it',
6210:'would be absurd to require law enforcement officers to defend at their own expense against likely groundless spite suits by',
6211:'the people whom they have arrested or investigated.”. however, the attorney general’s decision to provide or not provide counsel to',
6212:'an individual employee sued for official actions is discretionary and not subject to judicial review. e.g., turner v. schultz, 187',
6213:'f. supp. 2d 1288, 1292–97 d. colo. 2002; falkowski v. equal employment opportunity commission, 783 f.2d 252 d.c. cir., cert.',
6214:'denied, 478 u.s. 1014 1986. cf. hall v. clinton, 143 f. supp. 2d 1, 4 d.d.c. 2001 justice department decision',
6215:'to represent a party—as opposed to withholding representation— might be reviewable. the attorney general may take into consideration “how blameworthy',
6216:'or litigationprone the employee seeking representation may be.” falkowski, 783 f.2d at 254. in addition, the comptroller general has recognized',
6217:'that the statutes cited above authorize the justice department to retain private counsel, payable from justice department appropriations, if determined',
6218:'necessary and in the interest of the united states. e.g., 56 comp. gen. 615, 623 1977; b22494, jan. 10, 1942.',
6219:'for example, the justice department generally will not provide representation if the employee is the target of a criminal investigation,28',
6220:'but may authorize private counsel at justice department expense if a decision to seek an indictment has not yet been',
6221:'made. the justice department may also authorize private counsel if it perceives a conflict of interest between the legal or',
6222:'factual positions of different government defendants in the same case. 28 c.f.r. §§ 50.15 and 50.16. see 28 e.g., b251141,',
6223:'may 3, 1993 although no criminal charges or disciplinary actions were taken and the matters at issue did concern the',
6224:'performance of agency functions, food and drug administration’s request to use its appropriations to reimburse private attorney fees incurred by',
6225:'several employees incident to a federal criminal investigation of possible insider trader activities should be referred to justice for consideration;',
6226:'b242891, sept. 13, 1991 army may not use appropriated funds to reimburse private legal fees incurred by civilian officers of',
6227:'the u.s. army chemical research, development and engineering center convicted of multiple criminal environmental protection violations committed in the course',
6228:'of pursuing their otherwise official duties relating to the development of chemical warfare systems, quoting united states v. dee, 912',
6229:'f.2d 741, 744 4th cir. 1990, quoting united states v. isaacs, 493 f.2d 1124, 1142–44 7th cir. 1974 “criminal conduct',
6230:'is not part of the necessary functions performed by public officials.”. page 457 gao04261sp appropriations law—vol. i chapter 4 availability',
6231:'of appropriations: purpose 2 op. off. legal counsel 66 1978; 56 comp. gen. 615, 621–624 1977;29 b150136, b130441, may 19,',
6232:'1978; b130441, may 8, 1978; b130441, apr. 12, 1978. thus, an employee who learns that he is being sued should',
6233:'first explore the possibility of obtaining representation through the justice department. procedures for requesting representation are found in 28 c.f.r.',
6234:'§ 50.15a. the importance of this step must be emphasized. if the employee fails to immediately seek justice department representation,',
6235:'he may find, as discussed below, that he is stuck footing the bill for his attorney’s fees even in cases',
6236:'where the expense might otherwise have been paid by the government. if justice department representation is unavailable, there are limited',
6237:'situations in which appropriations of the employing agency may be available to retain private counsel. generally, before an agency can',
6238:'consider using its own funds, justice department representation must first have been sought and must be appropriate but unavailable, and',
6239:'representation must be in the interest of the united states. e.g., b251141, supra. the employee’s personal interest in the outcome',
6240:'does not automatically preempt a legitimate government interest. the two may exist sidebyside. one case, 53 comp. gen. 301 1973,',
6241:'dealt with suits against federal judges and other judicial officers.30 the suits arise in a variety of contexts, often involving',
6242:'collateral attacks on the judges rulings in original actions. while many of the suits are frivolous, some sort of defense,',
6243:'even if only a pro forma submission, is almost always necessary. in many cases, such as actions where no personal',
6244:'relief is sought against the judicial officer, or in potential conflict of interest situations, the justice department has determined that',
6245:'it cannot or will not provide representation. the comptroller general held that judiciary appropriations are available to pay the costs',
6246:'of litigation, including “minimal fees” to private attorneys, if 29 the decision in 56 comp. gen. 615 dealt with civil',
6247:'actions against employees under a prior version of section 7217 of the internal revenue code 26 u.s.c. § 7217 for',
6248:'improper disclosure of tax returns. the prior version of section 7217 has since been repealed and another statute has been',
6249:'inserted in its place. the remedy is now a suit for damages against the united states under 26 u.s.c. §',
6250:'7431. 30 subject to the same kinds of exceptions applied to legal representation of other federal employees, the justice department',
6251:'is statutorily required to defend federal judges. e.g., bryan v. murphy, 243 f. supp. 2d 1375, 1381 n.d. ga. 2003',
6252:'citing 28 u.s.c. § 516. page 458 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose determined to be',
6253:'in the best interest of the united states and necessary to carry out the purposes of the appropriation. however, the',
6254:'comptroller general added that 1 the justice department must have declined representation, although individual requests are not required for cases',
6255:'falling within the attorney general’s stated policy; 2 the determination of necessity cannot be made by the individual defendant but',
6256:'must be made by the administrative office of the u.s. courts; and 3 the administrative office should make full disclosure',
6257:'to the appropriate congressional committees. under similar circumstances, appropriations for the public defender service are available to defend federal public',
6258:'defenders appointed under the criminal justice act who are sued for actions taken within the scope of their duties. id.',
6259:'at 306. nine years after gao’s ruling in 53 comp. gen. 301, a statute was added to title 28 of',
6260:'the united states code authorizing the administrative office of the united states courts to pay the costs including attorney fees',
6261:'of defending a chief justice, justice, judge, officer, or employee of any united states court who is “sued in his',
6262:'official capacity, or is otherwise required to defend acts taken or omissions made in his official capacity, and the services',
6263:'of an attorney for the government are not reasonably available pursuant to chapter 31 of this title.” pub. l. no.',
6264:'97164, title i, § 116a, 96 stat. 25, 32 apr. 2, 1982, codified at 28 u.s.c. § 463. this statute',
6265:'was intended to address those situations where the justice department declines to provide representation to a judicial officer or employee',
6266:'on grounds of conflict of interest or other ethical reasons. mcbryde v. united states, 299 f.3d 1357, 1362–63, 1366 fed.',
6267:'cir. 2002 quoting s. rep. no. 97275, at 16. generally speaking, this provision does not authorize reimbursement where the judicial',
6268:'officer or employee was engaged in “offensive” rather than “defensive” litigation. id. at 1365–1367. regulations issued by the administrative office',
6269:'to implement 28 u.s.c. § 463 provide that the decision to reimburse expenses associated with legal representation by private counsel',
6270:'“will be guided by the opinion of the comptroller general in 53 comp. gen. 301.” mcbryde v. united states, 50',
6271:'fed. cl. 261, 266 2001, citing the guide to judiciary policies and procedures, vol. i, ch. xi, pt. d, §',
6272:'3c reissued april 2001. in 55 comp. gen. 408 1975, the u.s. attorney had agreed to defend a former small',
6273:'business administration sba employee who was sued for acts performed within the scope of his employment. the u.s. attorney later',
6274:'withdrew from the case even though the government’s interest in defending the former employee continued. in order to protect his',
6275:'own interests, the employee retained the services of a private attorney. since the justice page 459 gao04261sp appropriations law—vol. i',
6276:'chapter 4 availability of appropriations: purpose department had determined that it was in the interest of the united states to',
6277:'defend the employee and had undertaken to provide him with legal representation, the comptroller general held that sba could reimburse',
6278:'the employee for legal fees incurred as a result of his obtaining private counsel when representation by the united states',
6279:'subsequently became unavailable. see also b251141, supra “in limited circumstances, where justice determines that representation of a federal employee is',
6280:'appropriate but is unable to provide representation, agency appropriations may be used to pay for legal work that justice determines',
6281:'to be in the government’s interest.”. while 53 comp. gen. 301 and 55 comp. gen. 408 are widely viewed as',
6282:'establishing the concept that, in appropriate circumstances, agency appropriations may be available to pay private attorney’s fees to defend an',
6283:'employee, several later cases established some of the limits on the concept. if the employee fails to request justice department',
6284:'representation in a timely fashion, the employee may be forced to bear the expense of any private legal fees incurred.',
6285:'in b195314, june 23, 1980, an employee of the internal revenue service irs was sued for improper disclosure of confidential',
6286:'information. the employee requested justice department representation, but not until after she had hired a private attorney to file an',
6287:'answer in order to avoid a default judgment. the justice department agreed to provide representation, but declined to pay the',
6288:'private legal fees since the case was not within either of the situations permitted under the justice department regulations. since',
6289:'the facts could not support a finding that justice department representation was appropriate but unavailable, irs appropriations could not be',
6290:'used either. the need to take prompt action to avoid a default judgment makes no difference since the regulations expressly',
6291:'provide for provisional representation on the basis of telephone contact. if the actions giving rise to the suit are not',
6292:'within the scope of the employee’s official duties, even though related, there is no entitlement to government representation and hence',
6293:'no legal basis to reimburse attorney’s fees. for example, in 57 comp. gen. 444 1978, a department of agriculture employee',
6294:'was sued for libel by his supervisor because of allegations contained in letters the employee had written to various public',
6295:'officials. at the employee’s insistence, agriculture wrote to the justice department to request representation. however, agriculture concluded that, while some',
6296:'of the employee’s actions had been within the scope of his official duties, others—such as writing letters to the president',
6297:'and to a page 460 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose senator—were not. before the justice',
6298:'department reached its decision, the employee retained private counsel and was successful in having the suit dismissed. subsequently, the justice',
6299:'department determined that the employee would not have been eligible for representation since agriculture had been unwilling to say that',
6300:'all of the employee’s actions were within the scope of his official duties. on this basis, gao found no entitlement',
6301:'to government representation and disallowed the employee’s claim for reimbursement of his legal fees. similarly, gao denied a claim for',
6302:'legal fees where an army reserve member on inactive duty was arrested by the federal bureau of investigation fbi, charged',
6303:'with larceny of government property, and the charge was later dismissed. the government property involved consisted of service weapons and',
6304:'ammunition. the member had been authorized to retain weapons and ammunition in his personal possession, although it is not clear',
6305:'from the decision how this authority justified the possession of seven guns and over 100,000 rounds of ammunition, which is',
6306:'what the fbi found. in any event, the member’s actions did not result from the performance of required official duties',
6307:'but were at best permissible under existing regulations. therefore, there was no entitlement to either governmentfurnished or governmentfinanced representation. b185612,',
6308:'aug. 12, 1976. a related situation is where an employee incurs legal fees defending against a fine. in section c.6',
6309:'of this chapter on fines and penalties, a distinction is drawn between an action that is a necessary part of',
6310:'an employee’s official duties and an action which, although taken in the course of performing official duties, is not a',
6311:'necessary part of them. by logical application of this reasoning, where the fine itself is not reimbursable, related legal fees',
6312:'are similarly nonreimbursable. thus, in 57 comp. gen. 270 1978, the comptroller general held that the employing agency could not',
6313:'pay legal fees incurred by one of its employees defending against a reckless driving charge, where the justice department had',
6314:'declined to provide representation or to authorize retention of private counsel. see also b192880, feb. 27, 1979 nondecision letter; 15',
6315:'op. off. legal counsel 57, 63 1991. in 70 comp. gen. 647, supra, the smithsonian institution used federal funds to',
6316:'provide legal services to an interior department employee on detail at the smithsonian who became the subject of federal civil',
6317:'and criminal investigations. after a biggame hunt in china, some hunters and the interior department employee whom the hunters had',
6318:'paid to serve as page 461 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose their game advisor were',
6319:'charged with violating the endangered species act. the interior department employee was also charged with conflicts of interest in his',
6320:'financial arrangements. gao held that the smithsonian lacked authority to use appropriated funds to pay the employee’s attorney. id. at',
6321:'652. gao explained: “our cases do not support and were not intended to allow agencies to pursue their own litigative',
6322:'policies. instead, they recognize the availability of agency appropriations, where otherwise proper and necessary, for uses consistent with the litigative',
6323:'policies established for the united states by the attorney general…. to allow the use of appropriated funds [to defend a',
6324:'government employee against a federal criminal investigation and prosecution] would seriously undermine the litigative posture of the attorney general [and',
6325:'contradict] the clearly expressed intent of the congress to centralize control of government litigation under the attorney general, and to',
6326:'restrict the availability of appropriations in order to reinforce that policy.” id. at 650–651 citation omitted. sometimes, agencies chafe under',
6327:'the maxim noted above that agency appropriations are available, where otherwise proper and necessary, for uses consistent with the litigative',
6328:'policies established for the united states by the attorney general. the decision in 73 comp. gen. 90 1994 offers a',
6329:'case in point. the united states information agency usia was caught up in a sex discrimination class action. the justice',
6330:'department was defending the lawsuit, and required usia to support its effort by providing a secure suite of offices, office',
6331:'supplies and equipment, and four to six attorneys, the same number of paralegal/document specialists, along with other support staff, all',
6332:'on a fulltime basis. normally, usia’s general counsel staff included only eight attorneys. for its part, the justice department dedicated',
6333:'two fulltime attorneys and one fulltime paralegal to the task force. justice refused to allow usia to contractout for the',
6334:'additional staff, insisting instead that usia hire them under temporary appointments. id. at 90–91. usia asked gao to require justice',
6335:'to reimburse usia for its expenses, which usia estimated at $4.6 million over fiscal years 1992, 1993, and 1994. since',
6336:'justice gets annual appropriations to cover litigative expenses, usia page 462 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations:',
6337:'purpose argued, justice’s annual appropriations had been improperly augmented. 73 comp. gen. at 91–92. gao replied, “[t]here is no legal',
6338:'or equitable requirement that litigation support costs be shared equally, or even proportionately, between justice and its client agencies.” id.',
6339:'at 94. the expenses at issue represented “no more than the cost to usia of gathering and presenting to justice',
6340:'the facts and agency perspectives necessary to allow justice to represent usia in court, a typical example of agency support',
6341:'for justice litigators.” id. gao explained: “the limitations on the use of agency appropriations to provide litigative services originated as',
6342:'part of the provisions that created the justice department and invested it with general responsibility to act as the government’s',
6343:'litigator…these provisions were intended to reinforce justice’s control of the conduct of litigation involving the united states, not to bar',
6344:'agencies from using their appropriations to assist in the defense of litigation. our cases ‘recognize the availability of agency appropriations,',
6345:'where otherwise proper and necessary, for uses consistent with the litigative policies established for the united states by the attorney',
6346:'general.’” id. at 93–94, quoting 70 comp. gen. at 650–51 citing 39 comp. gen. 643 at 646–47 1960. of course,',
6347:'every rule has its exceptions. in b289288, july 3, 2002, a department of defense dependents schools dodds employee, who worked',
6348:'at a dodds school in japan, had been arrested, charged, and eventually convicted of criminal violations of japanese law involving',
6349:'the importation and possession of marijuana. under 10 u.s.c. § 1037, local counsel was retained to defend the employee in',
6350:'the japanese courts. read together, the plain terms of section 1037 and the regulations implementing it required dod to provide',
6351:'legal services to persons “employed by or accompanying [u.s.] armed forces in an area outside the united states,” even when',
6352:'the matter is unrelated to and wholly beyond the scope of the employee’s official duties. 10 u.s.c. § 1037a. funding',
6353:'is to come from “[a]ppropriations available to the military department concerned …for the pay of persons under its jurisdiction.” 10',
6354:'u.s.c. § 1037c. the statute leaves no role for the justice department in these matters. page 463 gao04261sp appropriations law—vol.',
6355:'i chapter 4 availability of appropriations: purpose questions over reimbursement of legal fees also arise in a number of nonjudicial',
6356:'contexts. in b193712, may 24, 1979, gao concluded that the central intelligence agency cia could reimburse a staff psychiatrist, who',
6357:'had been directed to prepare a psychological profile of daniel ellsberg as part of his official duties, for the cost',
6358:'of legal representation before congressional investigating committees and professional organizations. while the justice department regulations authorize representation at congressional proceedings',
6359:'on the same basis as in lawsuits 28 c.f.r. § 50.15a, this is not an area within justice department’s exclusive',
6360:'representation authority. therefore, while it may be desirable to first request justice department representation, failure to do so in this',
6361:'case did not preclude the use of cia appropriations, based on an administrative determination that the psychiatrist’s activities were necessary',
6362:'to carry out authorized cia functions. as in the judicial context, payment is generally unauthorized where it is not in',
6363:'furtherance of an official agency interest. see u.s. general accounting office, postal service: board of governors contract for legal services,',
6364:'gao/ggd8712 washington, d.c.: feb. 10, 1987 questioning propriety of payment of legal fees of board member incident to congressional investigation',
6365:'of prenomination activities. the justice department will not provide representation in administrative disciplinary proceedings because of the potential conflict in',
6366:'the event the employee later sues the government. in one case, gao concluded that the nuclear regulatory commission nrc could',
6367:'retain private counsel to represent two nrc staff members at a disciplinary proceeding where the agency determined that the employees',
6368:'had been acting within the scope of their authority. b127945, apr. 5, 1979. see also b192784, jan. 10, 1979. in',
6369:'another case, however, 58 comp. gen. 613 1979, the securities and exchange commission sec could not reimburse the legal fees',
6370:'of an sec employee at a disciplinary hearing even though the proceeding was ultimately resolved in the employee’s favor. the',
6371:'distinction is that in the nrc case, the misconduct charge had been raised and pursued by a third party, whereas',
6372:'in the sec case, while the charge was initially raised by an outside party, it was pursued based on the',
6373:'sec’s independent determination to investigate the allegation. the point of this distinction is that, once the agency determines to investigate',
6374:'the employee, its interests and those of the employee are no longer “aligned.” e.g., b245648.2, july 24, 1992 even though',
6375:'the administrative investigation was precipitated by a congressional subcommittee, since the irs conducted it, irs’s interests were no longer aligned',
6376:'with those of its employee, and the attorney fees incurred by the employee as a result of the investigation could',
6377:'not be page 464 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose reimbursed; b245712.3, may 20, 1992 department',
6378:'of agriculture employee, subject to an inspector general investigation instigated by a third party, may not be reimbursed for the',
6379:'attorney fees he incurred since the agency, having decided to investigate the employee, no longer had a common interest with',
6380:'him. in other words, the interests of the agency and employee have diverged and it is no longer possible to',
6381:'justify providing representation to the employee as a necessary and appropriate expense of the agency. also, the determination to provide',
6382:'legal representation must be made at the outset of the proceedings and not at the end based on the outcome.',
6383:'gao reached the same result in 70 comp. gen. 628 1991 forest service investigative report leading to criminal trial ending',
6384:'in acquittal on all charges, and in b212487, apr. 17, 1984 inspector general misconduct investigation. an agency may use its',
6385:'appropriated funds to provide legal representation for an employee brought before the merit systems protection board mspb on a complaint',
6386:'by the mspb special counsel, if the agency determines that the employee’s conduct was in furtherance of or incident to',
6387:'carrying out his or her official duties, and that providing representation would be in the government’s interest. 67 comp. gen.',
6388:'37 1987; 61 comp. gen. 515 1982. of course, this principle is not limited to cases pending before mspb. see,',
6389:'e.g., b251141, supra federal criminal investigation. if the agency makes the required determinations, the expenditure is viewed as a “necessary',
6390:'expense” of the agency or function. while the necessary expense theory is the legal basis, the underlying policy is expressed',
6391:'in the following excerpt: “surely federal employees must be answerable for illegal conduct. yet it can be in the interest',
6392:'of neither the government as a whole nor the taxpayers we serve to have employees afraid to function out of',
6393:'fear of being bankrupted by a lawsuit arising out of the good faith performance of their jobs.” 67 comp. gen.',
6394:'at 37–38. similarly, see, for example, 15 op. off. legal counsel, supra, at 62–63. appropriated funds may not be used',
6395:'to pay legal fees incurred by an “alleged discriminating official” in a discrimination complaint. 61 comp. gen. 411 1982; b201183,',
6396:'feb. 1, 1985. page 465 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose governmentfinanced legal counsel was also',
6397:'held improper at a grievance hearing where the legal liability of the employee was not an issue and the purpose',
6398:'of the hearing was solely to develop facts. 55 comp. gen. 1418. where reimbursement of legal fees under the above',
6399:'principles is authorized, it is a discretionary payment and not a legal entitlement of the employee. the agency’s responsibilities and',
6400:'discretion are summarized in the following paragraph from 67 comp. gen. at 38: “[i]t should be understood that payment in',
6401:'this type of case is not a legal liability on the part of the agency, but is essentially a discretionary',
6402:'payment. as such, an agency is not required to pay the entire amount of the fees actually charged in any',
6403:'given case. the controlling concept under feeshifting statutes is a ‘reasonable’ attorney’s fee, and there is a vast body of',
6404:'judicial precedent applying this concept under statutes such as the back pay act and title vii of the civil rights',
6405:'act. this body of precedent is available to provide guidance to agencies in evaluating the reasonableness of claims. also, since',
6406:'payment is discretionary, an agency is free to formulate administrative policies with respect to treatment of claims of this type.',
6407:'of course, any such policies should be applied fairly and consistently.” the preceding cases have all involved legal fees incurred',
6408:'for representation of the employee. a different situation occurred in 59 comp. gen. 489 1980. in 1969, local police raided',
6409:'a chicago apartment housing members of the black panther party. the raid erupted into violence and two of the occupants',
6410:'were killed. subsequently, the surviving occupants and the estates of the deceased sued state law enforcement officials and several agents',
6411:'of the federal bureau of investigation fbi, alleging violations of civil rights and the illinois wrongful death statute. the justice',
6412:'department represented the federal defendants, who were being sued in their individual capacities. as the litigation progressed, a possibility emerged',
6413:'that the court might grant the plaintiffs an award of attorney’s fees, in part against the fbi agents. the justice',
6414:'department asked whether fbi appropriations would be available to reimburse such an award. in the past, the comptroller general has',
6415:'at times declined to render decisions on questions that are premature and essentially hypothetical. here, however, in view of the',
6416:'legal page 466 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose d. suits unrelated to federal employees strategy',
6417:'proposed by the justice department the case also involved issues raising the potential liability of the united states, it was',
6418:'important to know if the fees could be reimbursed because if they could not, it might be necessary for the',
6419:'defendants to retain private counsel to represent their interests. the comptroller general resolved the question by applying the necessary expense',
6420:'doctrine. if the fbi made an administrative determination, supported by substantial evidence, that the actions giving rise to the award',
6421:'constituted officially authorized conduct and were taken as a necessary part of the defendant’s official duties, it could reimburse the',
6422:'award from its salaries and expenses appropriation. finally, the concept of using agency appropriations for legal fees when justice department',
6423:'representation is unavailable has arisen in a couple of contexts that are unrelated to suits against government employees. under 25',
6424:'u.s.c. § 175, the u.s. attorneys will generally represent indian tribes, and under 25 u.s.c. § 13, the bureau of',
6425:'indian affairs may spend money appropriated for the benefit of indians for general and incidental expenses relating to the administration',
6426:'of indian affairs. construing these provisions, the comptroller general has held that the bureau of indian affairs could use appropriated',
6427:'funds to pay legal fees incurred by indian tribes in judicial litigation, including intervention actions and cases where the tribe',
6428:'is the plaintiff, when conflict of interest makes justice department representation unavailable. however, the bureau must first give the justice',
6429:'department the option of providing or declining to provide representation. the bureau may also use appropriated funds for legal fees',
6430:'of indian tribes in administrative proceedings in which the justice department does not participate. 56 comp. gen. 123 1976. the',
6431:'courts have recognized that this authority carries with it substantial discretion. for example, in hopi tribe v. united states, 55',
6432:'fed. cl. 81 2002, suit was brought to recover legal fees and expenses incurred in litigation pursuant to the navajohopi',
6433:'settlement act of 1974. the court held that, under 25 u.s.c. §§ 13, 175, justice and the bureau both have',
6434:'broad discretion in determining whether to provide legal services or reimbursement for the costs of obtaining them elsewhere. among other',
6435:'things, the court explained that because congress appropriates lump sums to justice and the bureau for these purposes, the question',
6436:'of how best to use those sums is committed to agency discretion. hopi tribe, 55 fed. cl. at 97–98, quoting',
6437:'lincoln v. vigil, 508 u.s. 182, 192–195 1993, quoting both 55 comp. gen. 307, 319 1975, and principles of federal',
6438:'page 467 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose e. claims by federal employees appropriations law, at',
6439:'6159 2nd ed. 1992. see also discussion in chapter 6.31 1 discrimination proceedings title vii of the civil rights act',
6440:'of 1964, made applicable to the federal government by the equal employment opportunity amendments of 1972, broadly prohibits employment discrimination',
6441:'based on race, color, religion, sex, or national origin. two statutory provisions are relevant to the awarding of attorney’s fees.',
6442:'judicial awards, covered in chapter 14 volume iii of the second edition of the principles of federal appropriations law, are',
6443:'governed by 42 u.s.c. § 2000e5k, which authorizes courts to award reasonable attorney’s fees to nonfederal prevailing parties. in addition,',
6444:'42 u.s.c. § 2000e16b directs the former civil service commission to enforce title vii in the federal government “through appropriate',
6445:'remedies …as will effectuate the policies of this section.” the enforcement function was transferred to the equal employment opportunity commission',
6446:'eeoc in 1978. the concept of administrative fee awards developed largely as the result of a series of court decisions.',
6447:'first, the courts held that a court can award attorney’s fees to include compensation for services performed in related administrative',
6448:'proceedings as well as the lawsuit itself. parker v. califano, 561 f.2d 320 d.c. cir. 1977; johnson v. united states,',
6449:'554 f.2d 632 4th cir. 1977. then, the district court for the district of columbia held that title vii authorized',
6450:'the administrative awarding of attorney’s fees. patton v. andrus, 459 f. supp. 1189 d.d.c. 1978; smith v. califano, 446 f.',
6451:'supp. 530 d.d.c. 1978. however, this view was not unanimous. the court in noble v. claytor, 448 f. supp. 1242',
6452:'d.d.c. 1978, held that there was no authority for administrative awards and that only the court could award fees. 31',
6453:'the office of legal counsel olc has wrestled with a related issue: whether the justice department may defend tribes or',
6454:'tribal employees against suits for constitutional torts. olc concluded that the 1990 amendments to the indian selfdetermination and education assistance',
6455:'act of 1975 cover only those torts for which the federal tort claims act waives the sovereign immunity of the',
6456:'united states and do not authorize or otherwise address representation of tribes or tribal employees who are sued in their',
6457:'individual capacities for constitutional torts. opinion of the office of legal counsel, for the assistant attorney general civil division, coverage',
6458:'issues under the indian selfdetermination act, apr. 22, 1998. page 468 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations:',
6459:'purpose gao was initially inclined toward the view expressed in the noble decision. see b167015, apr. 7, 1978. however, gao',
6460:'reconsidered its position and subsequently announced that it would not object to the issuance of regulations by the eeoc to',
6461:'include the awarding of attorney’s fees at the administrative level. b193144, nov. 3, 1978; b167015, sept. 12, 1978; b167015, may',
6462:'16, 1978 all nondecision letters. eeoc issued interim regulations on april 9, 1980 45 fed. reg. 24130, and subsequently finalized',
6463:'them. the regulations, found at 29 c.f.r. § 1613.271, provide for awards of reasonable attorney’s fees both by eeoc and',
6464:'by the agencies themselves. with the issuance of these regulations, federal agencies now have the requisite authority. b199291, june 19,',
6465:'1981; b195544, may 7, 1980 nondecision letter. attorney’s fees awarded under the eeoc regulations are payable from the employing agency’s',
6466:'operating appropriations and not from the permanent judgment appropriation established by 31 u.s.c. § 1304.32 64 comp. gen. 349, 354',
6467:'1985; b199291, supra. cf. b257334, june 30, 1995 except as specifically provided by law, the permanent judgment appropriation is not',
6468:'available to pay administrative awards, including administrative settlements for compensatory damages under title vii. 32 as noted above, this chapter',
6469:'does not address the payment of litigative awards, which is covered in chapter 14. accordingly, the text here is speaking',
6470:'only about the payment of administrative awards. we note in passing, however, that a recently enacted law has changed the',
6471:'payment process for litigative attorney fees and other litigative awards rendered against certain federal agencies including “executive agencies” as defined',
6472:'in 5 u.s.c. § 105 arising from claims of discrimination or whistleblowing retaliation against federal employees, former federal employees, or',
6473:'applicants for federal employment. under the new law, known as the “notification and federal employee antidiscrimination and retaliation act of',
6474:'2002” or “nofear,” for short, these litigative awards will now be paid initially from the permanent, indefinite judgment fund appropriation.',
6475:'within a reasonable time thereafter, the federal agency involved must reimburse the judgment fund from its operating appropriations. see pub.',
6476:'l. no. 107174, § 1a, 116 stat. 566 may 15, 2002, to be codified at 5 u.s.c. § 2301 note.',
6477:'as a result of this law, all awards against federal agencies for discrimination or whistleblowing retaliation against federal employees, former',
6478:'federal employees, or applicants for federal employment including associated attorney fee awards—whether litigative or administrative—will ultimately be paid from agency',
6479:'operating appropriations, which is one of the main goals congress intended the new law to accomplish s. rep. no. 107143,',
6480:'at 1–3, 7–8 2002. page 469 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose gao will not review',
6481:'awards of, nor consider claims for, attorney’s fees under title vii. 69 comp. gen. 134 1989; 61 comp. gen. 326',
6482:'1982; b259632, june 12, 1995. title vii is not the only statute prohibiting discrimination in federal employment. discrimination based on',
6483:'age or handicap is prohibited, respectively, by the age discrimination in employment act, 29 u.s.c. §§ 621 et seq., and',
6484:'the rehabilitation act of 1973, 29 u.s.c. §§ 701 et seq. the eeoc has enforcement responsibility for federal employment under',
6485:'these statutes as well as title vii.33 initially, gao had held that the eeoc could provide by regulation for the',
6486:'awarding of attorney’s fees at the administrative level under the age discrimination in employment act and the rehabilitation act, just',
6487:'as in the title vii situation. 59 comp. gen. 728 1980. subsequently, the courts held that the age discrimination in',
6488:'employment act did not authorize fees at the administrative level, and gao partially overruled 59 comp. gen. 728 in 64',
6489:'comp. gen. 349 1985. however, that portion of 59 comp. gen. 728 dealing with the rehabilitation act remains valid. see',
6490:'also b204156, sept. 13, 1982. this treatment is consistent with the eeoc regulations, which authorize administrative fee awards under title',
6491:'vii and the rehabilitation act, but not the age discrimination in employment act. see 29 c.f.r. § 1614.501e formerly codified',
6492:'at § 1613.271d. the situation may become more complicated where an employee alleges discrimination on more than one ground. in',
6493:'69 comp. gen. 469 1990, an agency settled a complaint in which the employee had alleged both age and sex',
6494:'discrimination. based on the agency’s assertion that the result would have been the same if the employee had pursued only',
6495:'the sex discrimination charge, gao concluded that the agency was not required to “apportion” the attorney’s fee claim between the',
6496:'two charges and that the entire fee claim could be paid. 2 other employee claims prior to october 1978, there',
6497:'was no authority to award attorney’s fees to federal employees in connection with claims, grievances, or administrative 33 eeoc is',
6498:'not responsible for the entire rehabilitation act. the architectural and transportation barriers compliance board is responsible for insuring compliance with',
6499:'the standards prescribed in the architectural barriers act of 1968. 29 u.s.c. § 792. page 470 gao04261sp appropriations law—vol. i',
6500:'chapter 4 availability of appropriations: purpose proceedings involving back pay, adverse personnel actions, or other personnel matters. during this time',
6501:'period, gao consistently denied claims for attorney’s fees based on the general rule barring the payment of legal fees in',
6502:'the absence of statutory authority. e.g., 52 comp. gen. 859 1973 administrative grievance proceeding; b167461, aug. 9, 1978 unfair labor',
6503:'practice proceeding; b184200, apr. 13, 1976 reduction in grade; b183038, may 9, 1975 improper removal for disciplinary reasons. in october',
6504:'1978, the civil service reform act added two attorney’s fee provisions as part of its general overhaul of the system.',
6505:'first, it authorized the merit systems protection board to require the employing agency to pay reasonable attorney’s fees if the',
6506:'employee is the prevailing party and the board determines that the fee award is “warranted in the interest of justice.”',
6507:'5 u.s.c. § 7701g. fees awarded under this provision are payable directly to the attorney, not the party. jensen v.',
6508:'department of transportation, 858 f.2d 721 fed. cir. 1988.34 second, it added an attorney’s fee provision to the back pay',
6509:'act, 5 u.s.c. § 5596. now, if an employee, based on a timely appeal or an administrative determination, including grievance',
6510:'or unfair labor practice proceedings, is found by “appropriate authority”35 to have suffered a loss or reduction of pay as',
6511:'a result of an “unjustified or unwarranted personnel action,” the employee is entitled to recover reasonable attorney’s fees in addition',
6512:'to back pay. id. § 5596b. see generally b258290, june 26, 1995; b231813, aug. 22, 1989. regulations to implement the',
6513:'back pay act are issued by the office of personnel management and are found at 5 c.f.r. pt. 550, subpt.',
6514:'h. under the regulations, fees may be awarded only if the “appropriate authority” determines that payment is in the interest',
6515:'of justice, applying standards established by the merit systems protection board under 5 u.s.c. § 7701. 5 c.f.r. § 550.807c1.',
6516:'the standards are set forth in allen v. united 34 of course, different statutes often dictate different results with respect',
6517:'to who should receive payment. cf., e.g., heston v. secretary of health & human services, 41 fed. cl. 41, 45–46',
6518:'1998 distinguishing the result in jensen, supra. 35 the term “appropriate authority” includes the head of the employing agency, a',
6519:'court, the office of personnel management, the merit systems protection board but not the mspb special counsel, 59 comp. gen.',
6520:'107 1979, the comptroller general see, e.g., 63 comp. gen. 170 1984 and 62 comp. gen. 464 1983, the equal',
6521:'employment opportunity commission, the federal labor relations authority, plus a few others. 5 c.f.r. § 550.803. page 471 gao04261sp appropriations',
6522:'law—vol. i chapter 4 availability of appropriations: purpose states postal service, 2 m.s.p.r. 420 1980, and discussed in sterner v.',
6523:'department of the army, 711 f.2d 1563 fed. cir. 1983, and in 62 comp. gen. 464. for “[a] review of',
6524:'the case law,” see abramson v. united states, 45 fed. cl. 149, 151–152 1999. gao will not review decisions awarding',
6525:'or declining to award, nor consider claims for, fees under 5 u.s.c. § 7701. b257593, aug. 15, 1994 gao has',
6526:'no authority to review any mspb decision, citing, among others, 61 comp. gen. 578 1982—disavowing authority to review fee awards',
6527:'under section 7701; 63 comp. gen. at 174; 61 comp. gen. 290 1982. the back pay act regulations provide for',
6528:'review of fee determinations only “if provided for by statute or regulation.” 5 c.f.r. § 550.8067g formerly at 5 c.f.r.',
6529:'§ 550.06g. thus, absent some statute or regulation to the contrary, gao will similarly decline to review fee determinations under',
6530:'5 u.s.c. § 5596 where the “appropriate authority” is someone other than the comptroller general. 61 comp. gen. 290. while',
6531:'gao will not “review” such matters, it may provide its opinion on them, when requested by the agency or the',
6532:'accountable officer. for example, in b253507, jan. 11, 1994, the national archives and records administration nara asked gao if it',
6533:'could pay attorney fees as part of an administrative settlement, even though nara had not determined that an unjustified or',
6534:'unwarranted personnel action had occurred. nara argued that because the employee could have appealed to the merit systems protection board',
6535:'and possibly obtained attorney fees as discussed in the following paragraph, nara had implied authority to award attorney fees as',
6536:'part of its settlement. gao disagreed. nara had no statutory authority to pay attorney fees under the facts and laws',
6537:'applicable to the case. the fact that the employee could have appealed and might have won did not authorize nara',
6538:'and the employee to behave as if the employee actually had appealed and won. id. see also b258290, supra advance',
6539:'decision, pursuant to 31 u.s.c. § 3529, disapproved payment of attorney fees and other amounts arising from a grievance hearing',
6540:'wherein the agency declined to find an unjustified or unwarranted personnel action; b257893, june 1, 1995 certifying officer granted relief',
6541:'from liability, pursuant to 31 u.s.c. § 3528b1b, for the erroneous payment, which was the subject of b253507, supra. under',
6542:'a provision added in 1989, if an employee, former employee, or applicant for employment is the prevailing party before the',
6543:'merit systems protection board mspb, and mspb’s decision is based on a finding of a “prohibited personnel practice” defined in',
6544:'5 u.s.c. § 2302, “the agency page 472 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose involved shall',
6545:'be liable” to the complainant for reasonable attorney’s fees. the same liability applies with respect to appeals from the board,',
6546:'regardless of the basis of the decision. 5 u.s.c. § 1221g, added by the whistleblower protection act of 1989, pub.',
6547:'l. no. 10112, 103 stat. 16, 30 apr. 10, 1989. employee claims outside the scope of the back pay act',
6548:'or the mspb authority remain subject to the general rule prohibiting fee awards except under specific statutory authority. thus, administrative',
6549:'claims for attorney’s fees were denied in the following situations: applicant for employment with nuclear regulatory commission successfully challenged adverse',
6550:'information in security investigation file. b194507, aug. 20, 1979. nuclear regulatory commission employee detailed in violation of the whistleblower protection',
6551:'act wpa, supra, as retaliation for the disclosure of government illegality, waste, and corruption. although wpa does provide for attorney',
6552:'fees in certain circumstances, employee used agency grievance procedures not subject to wpa. 72 comp. gen. 289 1993. employee obtained',
6553:'continuance in divorce proceedings. continuance was necessitated by temporary duty assignment. b197950, sept. 30, 1980. cf. 70 comp. gen. 329',
6554:'1991 legal fees incurred to search title, prepare abstracts, conveyances and other documents required in the chain of conveying property',
6555:'interest from seller to buyer that are normally reimbursable under federal travel regulations ftr, ¶ 26.2c, but may not be',
6556:'reimbursed here as original court order was part of a divorce settlement; modification of divorce order constituted continuation of a',
6557:'litigated matter; litigation costs may not be reimbursed under the ftr; b242154, mar. 28, 1991 ftr does not allow reimbursement',
6558:'of litigation costs, even though employee “sustained a loss that he would not have sustained had he not transferred in',
6559:'the interest of the government”. a military member’s legal fees incident to custody proceedings, and medical insurance expenses for his',
6560:'adopted children are not “qualifying adoption expenses” under section 638 of the national defense authorization act for fiscal years 1988',
6561:'and 1989, pub. l. no. 100180, § 638, 101 stat. 1019, 1106–1108 dec. 4, 1987, as amended, and may not',
6562:'be reimbursed but legal fees incident to the actual petition and page 473 gao04261sp appropriations law—vol. i chapter 4 availability',
6563:'of appropriations: purpose order of adoption, as well as the amendment of birth certificates for the member’s adopted children are',
6564:'reimbursable from agency funds under the act. b235606, feb. 7, 1991. former employee successfully prosecuted administrative patent interference action against',
6565:'national aeronautics and space administration. b193272, aug. 21, 1981. fees incurred incident to prosecution of claim for relocation expenses. 68',
6566:'comp. gen. 456 1989; b186763, mar. 28, 1977. employee, selling residence incident to transfer of duty station, incurred legal fees',
6567:'in excess of customary range of charges for services rendered. b200207, sept. 29, 1981 legal fees within customary range of',
6568:'charges are reimbursable; see cases cited. similarly, see b252531, aug. 13, 1993 attorney fees claimed were duplicative of attorney fees',
6569:'already paid as part of the services provided by the relocation service company. administrative grievance proceeding involving neither an appeal',
6570:'to the merit systems protection board nor a reduction or denial of pay or allowances. b253507 n.5, supra; 68 comp.',
6571:'gen. 366 1989; 61 comp. gen. 411 1982. the same rule applies to expert witness expenses incurred by an employee.',
6572:'they are reimbursable only under specific statutory authority. in 67 comp. gen. 574 1988, a department of energy employee had',
6573:'requested an administrative hearing incident to a security clearance. the agency, due to the sudden unavailability of its witness, was',
6574:'forced to reschedule the hearing. the employee’s witness, a clinical psychologist, was unable to reschedule his patients to fill the',
6575:'now freedup time slot, and charged the employee for the 3 hours he had set aside to testify. gao found',
6576:'no authority to reimburse the employee. f. criminal justice act the criminal justice act cja, 18 u.s.c. § 3006a, was',
6577:'originally enacted in 1964 and substantially amended on several subsequent occasions. reflecting a series of supreme court decisions on the',
6578:'right of a criminal defendant to counsel, the cja establishes a system of governmentfinanced counsel for indigent defendants in federal',
6579:'criminal cases. in general, any person charged with a felony or misdemeanor, including juvenile delinquency, and who is “financially unable',
6580:'to obtain adequate representation” is eligible for counsel under the cja. counsel is to be page 474 gao04261sp appropriations law—vol.',
6581:'i chapter 4 availability of appropriations: purpose provided at every stage of the proceeding, from the first appearance before a',
6582:'magistrate through appeal, including appropriate ancillary matters. as the supreme court has expanded the right to counsel to encompass every',
6583:'meaningful stage at which significant rights may be affected see, e.g., miranda v. arizona, 384 u.s. 436 1966, the right',
6584:'to counsel under the cja has similarly expanded. the lawyers, who are courtappointed, may be private attorneys appointed on an',
6585:'individual basis or members of a federal public defender organization or community defender organization established and funded under the act.',
6586:'the attorneys are paid at rates of compensation specified in the statute. appropriations are made to the judiciary to carry',
6587:'out the act cja and payments are supervised by the administrative office of the united states courts. 1 types of',
6588:'actions covered originally, gao had held that the criminal justice act cja did not apply to probation revocation proceedings. 45',
6589:'comp. gen. 780 1966. subsequently, following the supreme court’s holding in mempa v. rhay, 389 u.s. 128 1967, gao modified',
6590:'the 1966 decision to recognize the applicability of the act to probation proceedings coupled with deferred sentencing. however, gao continued',
6591:'to hold the act inapplicable to a “simple” probation revocation proceeding one not involving deferred sentencing. 50 comp. gen. 128',
6592:'1970. two months after the issuance of 50 comp. gen. 128, congress passed public law 91447, substantially amending the cja.',
6593:'pub. l. no. 91447, 84 stat. 916 oct. 14, 1970. one of the changes made by these amendments was to',
6594:'expressly cover probation proceedings. the legislative history of public law 91447 indicates that it was intended to recognize mempa v.',
6595:'rhay. h.r. rep. no. 911546, at 7 1970. gao has not had occasion to issue any further decisions on probation',
6596:'proceedings. another change made by the 1970 amendments was to add parole revocation proceedings, with counsel to be provided at',
6597:'the discretion of the court or magistrate. subsequent legislation made appointment of counsel mandatory, and the comptroller general held that',
6598:'appropriations under the cja are available to provide counsel for indigents at parole revocation and parole termination proceedings under the',
6599:'parole commission and reorganization act. b156932, june 16, 1977. page 475 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations:',
6600:'purpose representation may be provided, at the discretion of the court or magistrate, to an indigent prosecuting a writ of',
6601:'habeas corpus 28 u.s.c. §§ 2241, 2254, 2255. 18 u.s.c. § 3006aa2. this authority does not extend to civil rights',
6602:'actions brought by indigent prisoners under 42 u.s.c. § 1983. 53 comp. gen. 638 1974; b139703, june 19, 1975. in',
6603:'51 comp. gen. 769 1972, gao held that the cja applied to prosecutions brought in the name of the united',
6604:'states in the district of columbia superior court and court of appeals. in 1974, congress passed the district of columbia',
6605:'criminal justice act pub. l. no. 93412, 88 stat. 1089 sept. 3, 1974, which established a parallel criminal justice system',
6606:'for the district of columbia patterned after 18 u.s.c. § 3006a. with the enactment of this legislation, the cja was',
6607:'amended to remove the district of columbia courts from its coverage. gao considered the d.c. statute in 61 comp. gen.',
6608:'507 1982 and construed it to include sentencing. the result should apply equally to the federal statute inasmuch as the',
6609:'language being construed is virtually identical in both laws. 2 miscellaneous cases when a court appoints an attorney under the',
6610:'criminal justice act cja, the government’s contractual obligation, and hence the obligation of appropriations, occurs at the time of the',
6611:'appointment and not when the court reviews the voucher for payment, even though the exact amount of the obligation is',
6612:'not determinable until the voucher is approved. where fiscal year appropriations are involved, the administrative office of the u.s.courts must',
6613:'record the obligation based on an estimate, and the payment is chargeable to the fiscal year in which the appointment',
6614:'was made. 50 comp. gen. 589 1971. in b283599, sept. 15, 1999, the executive officer of the district of columbia',
6615:'courts told gao that he anticipated fiscal year 1999 appropriations for cja claims would be exhausted on september 10, 1999.',
6616:'how, he asked, should the courts respond to cja claims received during the remainder of fiscal year 1999? should the',
6617:'courts suspend approving cja vouchers in order to avoid violating the antideficiency act? gao said, “no.” cja representation is a',
6618:'mandatory expense. an overobligation entirely attributable to a mandatory spending program, like cja, would be an overobligation authorized by law',
6619:'and, therefore, not a violation of the antideficiency act. see 31 u.s.c. §§ 1341a1a and b. however, this did not',
6620:'mean that the vouchers could be paid immediately on approval. a legally available funding source would still be required before',
6621:'any page 476 gao04261sp appropriations law—vol. i g. equal access to justice act chapter 4 availability of appropriations: purpose authorized',
6622:'overobligations could be liquidated. fortunately, gao noted, a bill then pending in congress would provide funds for this purpose. b283599,',
6623:'supra. see also u.s. general accounting office, d.c. courts: planning and budgeting difficulties during fiscal year 1998, gao/aimd/ogc99226, at 11–13',
6624:'washington, d.c.: sept. 16, 1999. for a full discussion of the law governing federal obligations, see chapter 7. an attorney',
6625:'appointed and paid under the cja does not thereby enter into an employeremployee relationship with the united states for purposes',
6626:'of the dual compensation laws. 44 comp. gen. 605 1965. this decision predated the 1970 amendments to the cja, which',
6627:'created the federal public defender organizations, and would presumably not apply to full time salaried attorneys employed by such organizations.',
6628:'an attorney regularly employed by the federal government who is appointed by a court to represent an indigent defendant, in',
6629:'either federal or state cases, may not be excused from official duty without loss of pay or charge to annual',
6630:'leave. 61 comp. gen. 652 1982; 44 comp. gen. 643 1965. an attorney appointed under the cja is expected to',
6631:'use his or her usual secretarial resources. as a general proposition, secretarial and other overhead expenses are reflected in the',
6632:'statutory fee and are not separately reimbursable. however, there may be exceptional situations, and if the attorney can demonstrate to',
6633:'the court that extraordinary stenographic or other secretarialtype expenses are necessary, they may be reimbursed from criminal justice act appropriations.',
6634:'53 comp. gen. 638 1974. a significant diminution of the american rule occurred in 1980 with the enactment of the',
6635:'equal access to justice act eaja, which authorizes the awarding of attorney’s fees and expenses in a number of administrative',
6636:'and judicial situations where feeshifting had not been previously authorized. this section describes the authority for administrative awards. the administrative',
6637:'portion of the eaja is found in 5 u.s.c. § 504. there are four key elements to the statute: 1.',
6638:'the administrative proceeding generating the fee request must be an “adversary adjudication,” defined as an adjudication under the administrative procedure',
6639:'act in which the position of the united states is represented by counsel or otherwise. 5 u.s.c. §§ 504a1, b1c.',
6640:'the definition excludes adjudications to fix or establish a page 477 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations:',
6641:'purpose rate or to grant or renew a license, but proceedings involving the suspension, annulment, withdrawal, limitation, amendment, modification, or',
6642:'conditioning of a license are covered if they otherwise qualify.36 application in the context of government procurement is discussed separately',
6643:'later. 2. the party seeking fees must be a “prevailing party other than the united states.” 5 u.s.c. § 504a1.',
6644:'the meaning of “prevailing party” is to be determined by reference to case law under other feeshifting statutes.37 of course',
6645:'before you can be a “prevailing party” you must first be a “party,” and the law prescribes financial and other',
6646:'eligibility criteria. 5 u.s.c. § 504b1b. 3. the law is not selfexecuting. the party must, within 30 days after final',
6647:'disposition of the adversary adjudication, submit an application to the agency showing that it is a prevailing party and meets',
6648:'the eligibility criteria, documenting the amount sought, and alleging that the position of the united states was not “substantially justified.”',
6649:'5 u.s.c. § 504a2. if the united states appeals the underlying merits, action on the application must be deferred until',
6650:'final resolution of the appeal. id. 4. if the above criteria are met, the fee award is mandatory unless the',
6651:'agency adjudicative officer finds that “the position of the agency was substantially justified or that special circumstances make an award',
6652:'unjust.” 5 u.s.c. § 504a1.38 substantial justification or lack thereof is to be determined “on the basis of the administrative',
6653:'record as a whole, which is made in the adversary adjudication.” id. the “position of the agency” includes the agency’s',
6654:'action or failure to act which generated the adjudication as well as the agency’s position in the adjudication itself. 5',
6655:'u.s.c. § 504b1e. a party who “unreasonably protracts” the proceedings risks reduction of the award. 5 u.s.c. § 504a3. 36',
6656:'s. rep. no. 96253, at 17 1979 report of the senate judiciary committee. 37 s. rep. no. 96253, supra, at',
6657:'7; h.r. rep. no. 961418, at 11 1980 report of house judiciary committee. 38 a position is “substantially justified” if',
6658:'it is “justified to a degree that could satisfy a reasonable person.” pierce v. underwood, 487 u.s. 552, 565 1988.',
6659:'see also immigration & naturalization service v. jean, 496 u.s. 154, 157 n.6 1990; dantran, inc. v. department of labor,',
6660:'246 f.3d 36, 40–41 1st cir. 2001. page 478 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose the',
6661:'award includes “fees and other expenses.” “fees” means a reasonable attorney’s fee, generally capped at $125 per hour unless the',
6662:'agency determines by regulation that costofliving increases or other special factors justify a higher rate.39 “other expenses” include such items',
6663:'as expert witness expenses and the necessary cost of studies, analyses, engineering reports, etc. 5 u.s.c. § 504b1a. the statute',
6664:'requires agencies to establish, by regulation, uniform procedures for administering the statute, in consultation with the administrative conference of the',
6665:'united states acus. 5 u.s.c. § 504c1. in 1986, acus has published a set of nonbinding model rules., found at',
6666:'51 fed. reg. 16659 may 6, 1986 formerly codified in 1 c.f.r. pt. 315. among other things, the supplementary information',
6667:'statement for those rules, found at 51 fed. reg. 16659 may 6, 1986, advised agencies that the statutory requirement to',
6668:'consult with acus will be met by simply notifying acus of the publication of proposed regulations, or by sending acus',
6669:'a prepublication draft for review and comment. id. there’s only one problem: acus was terminated in 1995 when its annual',
6670:'appropriation stipulated that funds for it were “available [only] for the purposes of [its] prompt and orderly termination.” treasury, postal',
6671:'service, and general government appropriations act, 1996, pub. l. no. 10452, title iv, 109 stat. 468, 480 nov. 19, 1995,',
6672:'codified at 5 u.s.c. § 591 note preceding section. although acus is now history, someone forgot to fix the statute.',
6673:'compare 5 u.s.c. § 504c1 requiring agencies to consult acus and 5 u.s.c. § 593–595 establishing acus. payment of administrative',
6674:'eaja awards is addressed in 5 u.s.c. § 504d: “fees and other expenses awarded under this subsection shall be paid',
6675:'by any agency over which the party prevails from any funds made available to the agency by appropriation or otherwise.”40',
6676:'39 pierce v. underwood, supra, identified a number of factors that may not be used as “special factors” to justify',
6677:'exceeding the cap: novelty and difficulty of issues; undesirability of the case; work and ability of counsel except for counsel',
6678:'with “distinctive knowledge or specialized skill” relevant to the case; results obtained; customary fees and awards in other cases; contingent',
6679:'nature of the fee. 487 u.s. at 571–74. see also, e.g., hyatt v. barnhart, 315 f.3d 239, 249 4th cir.',
6680:'2002. 40 this provision was added in 1985. the payment provision in the original eaja was complex and confusing. the',
6681:'amendment was designed to preclude payment under 31 u.s.c. § 1304, the permanent judgment appropriation. page 479 gao04261sp appropriations law—vol.',
6682:'i chapter 4 availability of appropriations: purpose as with judicial awards under 28 u.s.c. § 2412d, 5 u.s.c. § 504',
6683:'awards are payable from agency operating appropriations with no need for specific, lineitem, or “earmarked” appropriations.41 the obligation of the',
6684:'agency’s appropriations occurs when the agency issues its decision on the fee application. 62 comp. gen. 692, 699 1983. this',
6685:'determines the fiscal year to be charged. sometimes, the logic of this rule eludes an agency that is otherwise striving',
6686:'to be prudent and responsible in the management of its legal responsibilities and fiscal obligations. in b255772, aug. 22, 1995,',
6687:'the justice department and the national endowment for the arts nea sought gao’s guidance regarding whether the nea could pay',
6688:'an eaja attorney fee settlement using unobligated nea appropriations from previous fiscal years. for several years, nea had realized that',
6689:'a then pending case would eventually require nea to pay eaja attorney fees from its appropriations pursuant to 28 u.s.c.',
6690:'§ 2412d4. in anticipation of this, nea began setting aside a portion of its annual appropriations across several fiscal years',
6691:'so that, when the time to pay finally arrived, nea would have funds adequate to meet its obligations without adversely',
6692:'affecting other nea operations. however, when the settlement was finally completed, questions arose about whether the funds nea set aside',
6693:'could legally be used for this purpose. of course, they could not. as a general principle, “[a] court or administrative',
6694:'award creates a new right in the successful claimant, giving rise to new government liability.” b255772, quoting 63 comp. gen.',
6695:'308, 310 1984. nea had no obligation to pay the claims until the settlement agreement was final. in the absence',
6696:'of appropriate statutory authority, the funds nea had set aside in previous fiscal years had expired, and were not legally',
6697:'available to liquidate the obligation of a later fiscal year—the year in which the settlement agreement became final. id. see',
6698:'also b257061, july 19, 1995 except as otherwise provided by law, a faa must use appropriations available at time of',
6699:'award to pay attorney fees from a title vii discrimination complaint, and b had faa set aside appropriations in a',
6700:'prior fiscal year, when the complaint was filed, they would not have been available for this purpose. section 504 permits',
6701:'fee awards to intervenors who otherwise meet the statutory criteria. 62 comp. gen. at 693. as noted in that decision,',
6702:'the 41 authorities for this proposition are cited in chapter 14 volume iii of the second edition of principles of',
6703:'federal appropriations law in our discussion of the judicial portion of eaja, which has an identical payment provision. page 480',
6704:'gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose administrative conference expressed the same position in the preamble to',
6705:'an earlier version of the model rules, although commenting further that intervenors would rarely be in a position to actually',
6706:'receive awards. id. at 693–94. a specific appropriation act restriction on compensating intervenors will override the more general authority of',
6707:'5 u.s.c. § 504. 62 comp. gen. 692; electrical district no. 1 v. federal energy regulatory commission, 813 f.2d 1246',
6708:'d.c. cir. 1987; business & professional people for the public interest v. nuclear regulatory commission, 793 f.2d 1366 d.c. cir.',
6709:'1986 court agreed with result in 62 comp. gen. 692, implicitly accepting premise that eaja itself could apply to intervenors.',
6710:'we previously reviewed statutory authorities for awarding attorney’s fees in a variety of matters involving federal employees. initially, the law',
6711:'in this area, especially with respect to eaja, appeared unsettled. the court of appeals for the federal circuit has held',
6712:'that 5 u.s.c. § 504 does not authorize the merit systems protection board mspb to award attorney’s fees in cases',
6713:'involving employee selection or tenure. gavette v. office of personnel management, 808 f.2d 1456 fed. cir. 1986; olsen v. department',
6714:'of commerce, census bureau, 735 f.2d 558 fed. cir. 1984. this is was because the definition of “adversary adjudication” in',
6715:'section 504 refers to 5 u.s.c. § 554 part of the administrative procedure act, which expressly excludes “the selection or',
6716:'tenure of an employee.” this was consistent with an earlier decision of the district of columbia circuit. hoska v. department',
6717:'of the army, 694 f.2d 270 d.c. cir. 1982. however, the court in miller v. united states, 753 f.2d 270',
6718:'3rd cir. 1985, reached a contrary result. a review of the case law since gavette suggests that it and its',
6719:'progeny may have quietly assumed the prevailing position in the circuits.42 despite the passage of nearly two decades, the conflict',
6720:'does not appear to have been expressly addressed by the supreme court, and at least one commentator has concluded, “the',
6721:'federal circuit’s decision in gavette resolve[d] the conflicts among the lower courts.” nancy a. streeff, note, gavette v. office of',
6722:'personnel management: the right to attorney fees under the equal access to justice act, 36 am. u. l. rev. 1013,',
6723:'1025 1987. 42 the first circuit handed gavette down later in time, and took advantage of the opportunity to comment',
6724:'on miller. 808 f.2d at 1462–63. the third circuit has yet to reply, either with its analysis of gavette, or',
6725:'with a renewal or a repudiation of its support for miller. page 481 gao04261sp appropriations law—vol. i h. contract matters',
6726:'chapter 4 availability of appropriations: purpose prior to gavette, the mspb had taken the position that the existence of other',
6727:'feeshifting statutes made eaja inapplicable. social security administration v. goodman, 28 m.s.p.r. 120, 126 1985. however, in view of the',
6728:'implication of gavette that eaja might apply in cases not involving employee selection or tenure, the mspb reopened the goodman',
6729:'appeal, found that fees could be awarded in that case under 5 u.s.c. § 7701, and declined to comment further',
6730:'on the applicability of eaja. social security administration v. goodman, 33 m.s.p.r. 325, 326–27 n.1 1987. see also, e.g., nlrb',
6731:'v. boyce, 51 m.s.p.r. 295, 300 n.4 1991. gao held in 68 comp. gen. 366 1989 that eaja did not',
6732:'authorize a fee award to an employee who prevailed in an agency grievance proceeding that did not meet the standard',
6733:'of an “adversary adjudication.” see also 72 comp. gen. 289 1993 attorney fee provision of the whistleblower protection act does',
6734:'not apply where employee uses informal agency grievance procedure. this being the case, it was irrelevant whether or not the',
6735:'grievance involved selection or tenure. where a mspb decision is appealed to the courts, including a decision involving selection or',
6736:'tenure, the majority view is that eaja permits the court to award fees for the judicial proceedings, the relevant standard',
6737:'now being a “civil action” under 28 u.s.c. § 2412d rather than an “adversary adjudication” under 5 u.s.c. § 504.',
6738:'see maritime management, inc. v. united states, 242 f.3d 1326, 1336 11th cir. 2001 fees disallowed for bid protest proceedings',
6739:'before gao, but allowed in associated civil action. see also brewer v. american battle monuments commission, 814 f.2d 1564 fed.',
6740:'cir. 1987; gavette, 808 f.2d at 1462–65; miller, 753 f.2d at 274– 75; olsen, 735 f.2d at 561. here, however,',
6741:'the hoska case is in disagreement. to the extent eaja is inapplicable either to the mspb or to a court',
6742:'reviewing a mspb action, all is not necessarily lost to the fee applicant because eaja is not exclusive in these',
6743:'situations. the mspb and the courts both may award fees under the back pay act in appropriate cases, and the',
6744:'mspb additionally has 5 u.s.c. § 7701. thus, for example, hoska, while finding eaja inapplicable, awarded fees under the back',
6745:'pay act. 1 bid protests prior to 1984, attorney’s fees incurred by a bidder for a government contract in pursuing',
6746:'a bid protest with gao were not compensable. 57 comp. gen. 125, 127 1977; b197174, aug. 25, 1980; b192910, apr.',
6747:'11, 1979. the question arose again upon enactment of the equal access to page 482 gao04261sp appropriations law—vol. i chapter',
6748:'4 availability of appropriations: purpose justice act eaja in 1980. however, since a bid protest at gao is not an',
6749:'adversary adjudication governed by the administrative procedure act, eaja was equally unavailing. maritime management, inc. v. united states, 242 f.3d',
6750:'1326, 1336 11th cir. 2001 fees disallowed for bid protest proceedings before gao. see also 63 comp. gen. 541 1984;',
6751:'62 comp. gen. 86 1982; b251668, may 13, 1993; b211105.2, jan. 19, 1984. under the competition in contracting act of',
6752:'1984, as amended, 31 u.s.c. § 3554c1, gao may recommend that a protester be reimbursed the costs of filing and',
6753:'pursuing a protest, including reasonable attorney’s fees, where it finds that a solicitation or the award of a contract does',
6754:'not comply with statute or regulation. this is to relieve parties with valid claims of the burden of vindicating the',
6755:'public interests that congress seeks to promote. 68 comp. gen. 506, 508 1989. the costs and fees are payable from',
6756:'the contracting agency’s procurement appropriations. 31 u.s.c. § 3554c2 contracting agency “shall …pay the costs promptly”. gao’s approach under 31',
6757:'u.s.c. § 3554c is to recommend that the contracting agency pay the protest costs and allow the protester and agency',
6758:'to negotiate the appropriate amount. if the parties cannot agree, gao will determine the amount. 4 c.f.r. §§ 21.8d, e,',
6759:'and f formerly at 4 c.f.r. §§ 21.6d and e. a protester seeking to recover the costs of pursuing its',
6760:'protest must submit sufficient evidence to support its monetary claim; the amount claimed may be recovered to the extent that',
6761:'the claim is adequately documented and is shown to be reasonable. b240327.3, dec. 30, 1994. see, e.g., b291657, feb. 11,',
6762:'2003. gao’s bid protest authority is not exclusive. a protester may also seek resolution with the contracting agency, file a',
6763:'bid protest at the court of federal claims after having its protest denied at gao, or go directly to the',
6764:'court of federal claims in lieu of filing a protest at gao. 31 u.s.c. § 3556. once a case is',
6765:'in court, 31 u.s.c. § 3554c is out of the picture, and the court may consider a fee application under',
6766:'the judicial portion of eaja. e.g., essex electro engineers, inc. v. united states, 757 f.2d 247 fed. cir. 1985; laboratory',
6767:'supply corp. of america v. united states, 5 cl. ct. 28 1984. bid protest disputes often give rise to significant',
6768:'operational delays. sometimes, rather than litigate the bid protest and then correct the flaws in its procurement, an agency will',
6769:'try to “buy off” a bid protester with a monetary settlement. this practice is known as “fedmail.” typically, the payment',
6770:'is for bid protest preparation expenses, including legal fees. in page 483 gao04261sp appropriations law—vol. i chapter 4 availability of',
6771:'appropriations: purpose u.s.general accounting office, adp bid protests: better disclosure and accountability of settlements needed, gao/ggd9013 washington, d.c.: mar. 30,',
6772:'1990, at 31, gao indicated that it would question the propriety of fedmail payments, if and when it came across',
6773:'them. 71 comp. gen. 340, 342 1992. in 71 comp. gen. 340, a fedmail arrangement went sour when the disbursing',
6774:'officers of the defense supply servicewashington refused to make payment under the agreement. this was inopportune, to say the least,',
6775:'as the parties had already secured dismissal of the protest from the general services administration board of contract appeals gsbca43',
6776:'pursuant to their fedmail agreement. the gsbca did not know about the fedmail agreement when it ordered the dismissal. once',
6777:'it learned of it, gsbca declined to modify its dismissal order. consequently, the agency asked gao to issue an advance',
6778:'decision authorizing the payment. however, as it had threatened in gao/ggd9013, gao objected to the payment as improper and without',
6779:'legal authority: “we do not believe that in making appropriations available to an agency for the procurement of goods and',
6780:'services, congress intended those funds to be available to allow the agency to obtain the withdrawal of a meritorious protest',
6781:'without taking appropriate corrective action. in addition, …[w]e are not aware of any statute that would permit the army to',
6782:'pay attorney fees in the circumstances of this case.” 71 comp. gen. at 342. 2 contract disputes under the original',
6783:'1980 version of the equal access to justice act eaja, the court of appeals for the federal circuit held that',
6784:'1 a court, reviewing a decision of an agency board of contract appeals, could, under the judicial portion of eaja,',
6785:'make a fee award covering services before both the board and the court, but that 2 boards of contract appeals',
6786:'were not authorized to independently make eaja fee awards. fidelity construction co. v. united states, 700 f.2d 1379 fed. cir.,',
6787:'cert. denied, 464 u.s. 826 1983. 43 at that time, gsbca was authorized to hear bid protests involving automatic data',
6788:'processing procurements under the socalled brooks act, formerly codified at 40 u.s.c. § 759. the brooks act has since been',
6789:'repealed, pub. l. no. 104106, § 5101, 110 stat. 186, 680 1996. page 484 gao04261sp appropriations law—vol. i chapter 4',
6790:'availability of appropriations: purpose i. public participation in administrative proceedings: funding of intervenors the 1985 eaja amendments legislatively overturned fidelity',
6791:'to the extent it held 5 u.s.c. § 504 inapplicable to boards of contract appeals. e.g., ardestani v. immigration &',
6792:'naturalization service, 502 u.s. 129, 138 1991; dantran, inc. v. department of labor, 246 f.3d 36, 45 1st cir. 2001;',
6793:'texas instruments, inc. v. united states, 991 f.2d 760, 767 fed. cir. 1993. specifically, the law amended the definition of',
6794:'“adversary adjudication” to expressly include appeals to boards of contract appeals under the contract disputes act. the 1985 amendments also',
6795:'added language to 28 u.s.c. § 2412d to make it clear that fee awards are authorized when a contractor appeals',
6796:'a contracting officers decision directly to a court instead of to a board of contract appeals, as authorized by the',
6797:'contract disputes act. as noted in the preceding paragraph, appeals to court from board decisions were already covered. the fees',
6798:'recovered under this authority are limited to services provided after the contracting officers decision and do not include services provided',
6799:'in order to argue the matter before the contracting officer. see levernier construction, inc. v. united states, 947 f.2d 497,',
6800:'500–503 fed. cir. 1991. a number of regulatory agencies conduct administrative proceedings and take actions that have a direct public',
6801:'impact. a prime example is licensing. an important concern has been that the agency may not receive a balanced presentation',
6802:'of viewpoints. the reason is that the industries being regulated usually have adequate resources to ensure representation of their interests,',
6803:'while lack of resources may preclude participation by various nonindustry “public interest” representatives. the comptroller general has considered questions of',
6804:'intervenor funding. an “intervenor” in this context means someone who is not a direct party to the proceedings. stated briefly,',
6805:'the rule is that an agency may use its appropriations to fund intervenor participation, including attorney’s fees, if— 1. intervenor',
6806:'participation is authorized, either expressly by statute or by necessary implication derived from a regulatory or licensing function; 2. the',
6807:'agency determines that the participation is reasonably necessary to a full and fair determination of the issues before it; and',
6808:'3. the intervenor could not otherwise afford to participate. page 485 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations:',
6809:'purpose this is essentially an application of the “necessary expense” doctrine discussed previously in this chapter. thus, intervenor funding does',
6810:'not require express statutory authority, but it must relate to accomplishing the objectives of the appropriation sought to be charged,',
6811:'and of course must not be otherwise prohibited. the agency must have authority to encourage or accept intervenor participation in',
6812:'connection with an authorized function for which its appropriations are available. in this sense, it may be said that intervenor',
6813:'funding must have a statutory foundation. historically the concept of intervenor funding emerged in the early 1970s. in 1970, the',
6814:'federal trade commission ftc held that an indigent respondent in an ftc hearing was entitled to governmentfurnished counsel. american chinchilla',
6815:'corp., 1970 trade reg. rep. ¶ 19059. following the chinchilla case, the ftc asked whether it could pay certain related',
6816:'expenses for the indigent respondent, such as transcript costs and attorney’s expenses. it also asked whether it could pay the',
6817:'same expenses when incurred by an indigent intervenor rather than the respondent. in the first of the intervenor cases, b139703,',
6818:'july 24, 1972, gao answered “yes” to both questions. noting that ftc had statutory authority to grant intervention “upon good',
6819:'cause shown,” the comptroller general responded to the intervenor question as follows: “thus, if the commission determines it necessary to',
6820:'allow a person to intervene in order to properly dispose of a matter before it, the commission has the authority',
6821:'to do so. as in the case of an indigent respondent, and for the same reasons, appropriated funds of the',
6822:'commission would be available to assure proper case preparation.” a few years later, the nuclear regulatory commission asked whether it',
6823:'was authorized to provide financial assistance to participants in its adjudicatory and rulemaking proceedings. finding that nrc had statutory authority',
6824:'to admit intervenors, the comptroller general applied the “necessary expense” rationale of b139703, and answered “yes.” b92288, feb. 19, 1976.',
6825:'page 486 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose in this decision, gao explained why the “american',
6826:'rule” as set forth in alyeska pipeline co. v. wilderness society, 421 u.s. 240 1975,44 does not apply to bar',
6827:'the payment of attorney’s fees. the distinction is that the american rule limits the power of a court or an',
6828:'agency to require an unwilling defendant to pay the attorney’s fees of a prevailing plaintiff or intervenor. in cases like',
6829:'b139703 and b92288, an administrative body, exercising its rulemaking function, is attempting to encourage public participation in its proceedings. it',
6830:'does this by willingly assuming representation costs for intervenors who would otherwise be financially unable to participate, in order to',
6831:'obtain their input for a balanced rulemaking effort. only by obtaining a balanced view can the agency perform its function',
6832:'of protecting the public interest. next, in a letter to the chairman of the oversight and investigations subcommittee of the',
6833:'house committee on interstate and foreign commerce, gao advised that the rationale of b92288, supra, applied equally to nine agencies',
6834:'under the subcommittees jurisdiction. the nine were: federal communications commission, federal trade commission, federal power commission, interstate commerce commission, consumer',
6835:'product safety commission, securities and exchange commission, food and drug administration, environmental protection agency, and national highway traffic safety administration.',
6836:'b180224, may 10, 1976. gao pointed out in the same letter that there were several possible ways of providing assistance',
6837:'to qualifying participants: 1. provision of funds directly to participants. 2. modification of agency procedural rules so as to ease',
6838:'the financial burdens of public participation. 3. provision of technical assistance by agency staff. however, this cannot include assigning staff',
6839:'members to participants to help them with their advocacy positions. 4. provision of legal assistance by agency staff, but again',
6840:'not as advocates. 44 the supreme court reiterated the “american rule” recently in buckhannon board & care home, inc. v.',
6841:'west virginia department of health & human resources, 532 u.s. 598, 602 2001. page 487 gao04261sp appropriations law—vol. i chapter',
6842:'4 availability of appropriations: purpose 5. creation of an independent public counsel. however, the public counsel cannot be beyond the',
6843:'agency’s jurisdiction and control. 6. creation of a consumer assistance office, as long as it remains under the agency’s jurisdiction',
6844:'and control and does not act as an advocate. in subsequent decisions and opinions, gao examined aspects of the programs',
6845:'of several specific agencies. in each case, gao consistently applied the rationale of the earlier decisions. the cases are: environmental',
6846:'protection agency: 59 comp. gen. 424 1980; b180224, apr. 5, 1977; federal communications commission: b139703, sept. 22, 1976; food and',
6847:'drug administration: 56 comp. gen. 111 1976; nuclear regulatory commission: 59 comp. gen. 228 1980; and economic regulatory administration a',
6848:'component of the department of energy: b192213o.m., aug. 29, 1978; u.s. general accounting office, department of energy’s procedures in funding',
6849:'intervenors in proceedings before the economic regulatory administration, emd 78111 washington, d.c.: oct. 2, 1978. while the decisions have consistently',
6850:'upheld the legality of intervenor funding under the necessary expense theory, gao has nevertheless emphasized the desirability of an agency’s',
6851:'seeking specific statutory authority to embark on a public participation program. e.g., b180224, supra; b92288, supra. congress has acted in',
6852:'several instances, authorizing intervenor funding in some cases and prohibiting it in others. for example, the environmental protection agency has',
6853:'intervenor funding authority under the toxic substances control act, 15 u.s.c. § 2605c, and the consumer product safety commission has',
6854:'such authority under the consumer product safety act, 15 u.s.c. § 2056c. similarly, from 1975 until recently, the federal trade',
6855:'commission was given specific authority to fund intervenor participation in 1975 by the magnusonmoss warranty– federal trade commission improvement act,',
6856:'formerly, 15 u.s.c. page 488 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose § 57ah.45 under this legislation,',
6857:'payments for legal services could not exceed the costs actually incurred, even though the participant used “house counsel” whose rate',
6858:'of pay was lower than prevailing rates. 57 comp. gen. 610 1978. restrictions in appropriation acts have prohibited intervenor funding',
6859:'programs for several agencies. for example, a provision in the nuclear regulatory commissions nrc 1981 appropriation prohibited the use of',
6860:'funds for the expenses of intervenors. the comptroller general construed this restriction as prohibiting the nrc from adopting a “cost',
6861:'reduction program” of providing transcripts and other documents free to intervenors. b200585, dec. 3, 1980. however, nrc could reduce the',
6862:'number of copies of documents required to be filed. id. also, nrc could decide to provide free transcripts to all',
6863:'parties, intervenors included, without violating the restriction. b200585, may 11, 1981. other cases construing the nrc restriction, or successor versions,',
6864:'are business & professional people for the public interest v. nuclear regulatory commission, 793 f.2d 1366 d.c. cir. 1986; 67',
6865:'comp. gen. 553 1988; and 62 comp. gen. 692 1983. appropriation act restrictions have also prohibited intervenor funding by the',
6866:'economic regulatory administration and the federal energy regulatory commission ferc. a case involving the ferc prohibition is electrical district no.',
6867:'1 v. federal energy regulatory commission, 813 f.2d 1246 d.c. cir. 1987. in addition, the conference committee on the 1980',
6868:'appropriation for the national highway traffic safety administration and the former civil aeronautics board directed that no funds be allocated',
6869:'by these agencies for intervenor funding programs.46 a restriction contained solely in legislative history and not carried into the statutory',
6870:'language itself is not legally binding on the agency. the history of the nrc prohibition will illustrate this. for fiscal',
6871:'year 1980, the prohibition was expressed in committee reports but not in the appropriation act itself. accordingly, gao told nrc',
6872:'that, while it would be well advised to postpone its program, the restriction was not legally binding. 59 comp. gen.',
6873:'228 1980. for fiscal year 1981, the prohibition was written into nrc’s appropriation act. similarly, the restriction noted above for',
6874:'the 45 authority repealed by pub. l. no. 103312, § 3, 108 stat. 1691 aug. 26, 1994. 46 h.r. rep.',
6875:'no. 96610, at 9, 14 1979 on h.r. 4440, 1980 appropriations bill for department of transportation and related agencies. page',
6876:'489 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose transportation agencies later “graduated” to a general provision in',
6877:'the statute.47 one court has disagreed with the gao decisions. greene county planning board v. federal power commission greene county',
6878:'iv, 559 f.2d 1227 2nd cir., cert. denied, 434 u.s. 1086 1976.48 there, after several years of litigation, the plaintiff',
6879:'board had finally prevailed in its attempt to compel relocation of a proposed high kilovolt power line through a scenic',
6880:'portion of the county. the only question remaining was the ability of the federal power commission fpc to reimburse the',
6881:'plaintiff’s attorney’s fees. though not “indigent,” the counsel fees had drained a disproportionate amount of the county’s resources. the fpc',
6882:'had denied reimbursement on the grounds that the board was protecting its own, not the public, interest and because it',
6883:'thought it lacked authority to reimburse the fees. after first concluding that the issue should be remanded to the fpc',
6884:'so that it could determine the propriety of reimbursement in accordance with the comptroller general’s decisions, the second circuit court',
6885:'of appeals granted a rehearing en banc. on rehearing, the majority opinion held that the fpc lacked authority to reimburse',
6886:'the attorney’s fees. greene county iv, 559 f.2d at 1238. subsequently, both gao and the justice departments office of legal',
6887:'counsel took the position that greene county iv applied only to the former fpc, and not to other federal agencies',
6888:'or even to the agencies that succeeded to the fpc’s responsibilities. 59 comp. gen. 228; 2 op. off. legal counsel',
6889:'60 1978. in addition, the u.s. district court for the district of columbia has likewise determined that greene county iv',
6890:'does not extend generally to all agencies. chamber of commerce v. united states department of agriculture, 459 f. supp. 216',
6891:'d.d.c. 1978, upholding the authority of the department of agriculture to fund a consumer study on the impact of certain',
6892:'proposed rules. thus, to determine whether a given agency has intervenor funding authority, it is necessary first to examine the',
6893:'legislation, including appropriation acts, applicable to that agency, as well as pertinent judicial 47 e.g., department of transportation and related',
6894:'agencies appropriations act, 1990, pub. l. no. 101164, § 306, 103 stat. 1069, 1092 nov. 21, 1989. 48 the greene',
6895:'county litigation produced several published decisions: 455 f.2d 412 2nd cir. 1972, 490 f.2d 256 2nd cir. 1973, 528 f.2d',
6896:'38 2nd cir. 1975, and the decision cited in the text, known as “greene county iv.” page 490 gao04261sp appropriations',
6897:'law—vol. i chapter 4 availability of appropriations: purpose decisions. in the absence of statutory direction one way or the other,',
6898:'and if there are no judicial decisions on point, it is then appropriate to apply the necessary expense rationale of',
6899:'the gao decisions. the later decisions somewhat refined the standards expressed in the earlier cases. for example, in order to',
6900:'constitute a “necessary expense,” the participation does not have to be absolutely indispensable in the sense that the issues could',
6901:'not be decided without it. it is sufficient for the agency to determine that a particular expenditure for participation can',
6902:'reasonably be expected to contribute substantially to a full and fair determination of the issues. 56 comp. gen. 111. this',
6903:'is consistent with the application of the necessary expense doctrine in other contexts as discussed throughout this chapter. assuming the',
6904:'requisite statutory basis for intervention exists, the determination of necessity must be made by the administering agency itself, not by',
6905:'gao. id. see also b92288, supra. the standard of the participant’s financial status was discussed in 59 comp. gen. 424',
6906:'1980. while the participant need not be literally indigent, the authority to fund intervenor participation extends only to individuals and',
6907:'organizations which could not afford to participate without the assistance. in making this determination, the agency should consider the income',
6908:'and expense statements, as well as the net assets, of an applicant. an applicant does not qualify for assistance merely',
6909:'because it cannot afford to participate in all activities it desires. the applicant is expected to choose those activities it',
6910:'considers most significant and to allocate its resources accordingly. some of the earlier cases held that advance funding was prohibited',
6911:'by 31 u.s.c. § 3324. 56 comp. gen. 111; b139703, sept. 22, 1976. however, in view of the federal grant',
6912:'and cooperative agreement act of 1977, an agency with statutory authority to extend financial assistance in the form of grants',
6913:'may be able to utilize advance funding in its public participation program. a 1980 decision, 59 comp. gen. 424, applied',
6914:'this concept to the program of the environmental protection agency. the decisions have all dealt with participation in the agency’s',
6915:'own proceedings. there would generally be no authority to fund intervenor participation in someone else’s proceedings, for example, participation by',
6916:'a state agency in a state utility ratemaking proceeding. b178278, apr. 27, 1973 nondecision letter. page 491 gao04261sp appropriations law—vol.',
6917:'i chapter 4 availability of appropriations: purpose finally, the gao decisions in no way imply that an agency is compelled',
6918:'to fund intervenor participation. they hold merely that, if the various standards are met, an agency has the authority to',
6919:'do so if it wishes. see b92288, supra. a summary and discussion of intervenor funding through early 1981 may be',
6920:'found in u.s. general accounting office, review of programs for reimbursement for public participation in federal rulemaking proceedings, pad8130 washington,',
6921:'d.c.: mar. 4, 1981. see also rollee h. efros, “payment of intervenors expenses in agency regulatory proceedings,” cases in accountability:',
6922:'the work of the gao washington, d.c.: westview press,1979, pp. 171–181. 4. compensation restrictions “if an officer is not satisfied',
6923:'with what the law gives him for his services, he may resign.” embry v. united states, 100 u.s. 680, 685',
6924:'1879, quoted in lincoln v. united states, 418 f. supp. 1094, 1095 n.d. cal. 1976. as a general proposition, restrictions',
6925:'on the compensation of federal employees are regarded as matters of personnel law that are now under the jurisdiction of',
6926:'the office of personnel management.49 however, compensation restrictions may also be viewed as limits on the “purpose availability” of appropriations.',
6927:'we specifically treat three compensation related topics in this chapter—the restrictions on dual compensation, the restrictions on employing aliens, and',
6928:'the statutes concerning forfeiture of retirement annuities and retired pay—as illustrations of the different ways in which congress may exercise',
6929:'its constitutional role of controlling the public purse by prescribing the purposes for which appropriated funds may be used. the',
6930:'provision on aliens is a restriction appearing in annual appropriation acts. the dual compensation and forfeiture statutes are 49 the',
6931:'104th congress enacted two laws, the legislative branch appropriations act of 1996, pub. l. no. 10453, § 211, 109 stat.',
6932:'514, 535 nov. 19, 1995, and the general accounting office act of 1996, pub. l. no. 104316, 110 stat. 3826',
6933:'oct. 19, 1996, that transferred gao’s authority over the settlement of claims and related advance decisions, waivers, and other functions',
6934:'including judgment fund payments and transportation carriers appeals to the executive branch. federal employees’ claims for compensation and leave, and',
6935:'settlement of deceased employees’ accounts were assigned to office of personnel management opm, office of general counsel, claims adjudication unit.',
6936:'in april 2000, this function was transferred to opm’s office of merit systems oversight and effectiveness. page 492 gao04261sp appropriations',
6937:'law—vol. i chapter 4 availability of appropriations: purpose permanent provisions found in the united states code; while not phrased in',
6938:'terms of appropriation restrictions, the effect is the same. a. dual compensation section 5536 of title 5 of the united',
6939:'states code prohibits a civilian employee or member of the uniformed services whose pay is fixed by statute or regulation',
6940:'from receiving additional pay from public money for any other service or duty, unless authorized by law.50 this is a',
6941:'purpose restriction on how an agency may spend its appropriation. for instance, gao found that paying the actual cost of',
6942:'personal cell phone use for government business is permitted but not at a flat rate because an established fee per',
6943:'day is equivalent to an allowance in addition to salary, and, therefore, is prohibited by 5 u.s.c. § 5536. b287524,',
6944:'oct. 22, 2001. gao has also held in several cases that the provision of free food while on duty violates',
6945:'the prohibition against dual compensation. see, e.g., 42 comp. gen. 149, 151 1962; b272985, dec. 30, 1996. b. employment of',
6946:'aliens for many years, with minor variations from year to year, various appropriation acts have included provisions restricting the federal',
6947:'employment of aliens. the typical prohibition, with exceptions to be noted below, bars the use of appropriated funds to pay',
6948:'compensation to any officer or employee of the united states whose post of duty is in the continental united states',
6949:'unless that person is a u.s. citizen. in more recent years, the prohibition has appeared as a general provision in',
6950:'the treasury, postal service, and general government appropriation acts, applicable to funds contained “in this or any other act.”51 a',
6951:'recurring general provision in the defense department appropriation act exempts defense department personnel from the alien restriction.52 the prohibition applies',
6952:'to all appropriated funds unless expressly provided otherwise. therefore, it applies to the special deposit accounts established by statute for',
6953:'the senate and house restaurants since these accounts 50 we note in passing that there are other laws limiting the',
6954:'salaries paid to federal employees. e.g., 18 u.s.c. § 209 salary of government employees payable only by united states. however,',
6955:'this discussion is limited to laws that constitute purpose restrictions on an agency’s use of appropriations to pay salaries. 51',
6956:'for example, the 2003 provision is found in pub. l. no. 1087, div. j, title vi, § 605, 117 stat.',
6957:'11, 464 feb. 20, 2003 codified at 5 u.s.c. § 3101 note. 52 the 2003 provision is pub. l. no.',
6958:'107248, title viii, § 8002, 116 stat. 1519, 1536 oct. 23, 2002 codified at 10 u.s.c. § 1584 note. page',
6959:'493 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose amount to permanent indefinite appropriations. 50 comp. gen. 323',
6960:'1970. it also applies to working capital funds. b161976, aug. 10, 1967.53 there are a number of statutory exceptions to',
6961:'the restriction on compensating aliens. as noted, one significant exemption is for defense department personnel. see b188507, dec. 16, 1977;',
6962:'b110831, aug. 4, 1952. others are 42 u.s.c. § 2473c10 national aeronautics and space administration, permanent legislation; 2 u.s.c. §',
6963:'169 library of congress, found in annual appropriation acts; 22 u.s.c. § 14741 permanent authority for specific, activities within the',
6964:'united states information agency; and 22 u.s.c. § 2672 permanent authority for specific activities within the state department. since appropriation',
6965:'act exceptions may appear, disappear, or vary from time to time, it is important to scrutinize the relevant appropriation act',
6966:'for any given year. absent an applicable exception, the general prohibition will apply. for an illustration of the complexities that',
6967:'may arise when the provisions vary from year to year, see 57 comp. gen. 172 1977. gao has supported enactment',
6968:'of the general restriction as permanent legislation. b130733, mar. 6, 1957. in addition to the agencywide exemptions noted above, the',
6969:'alien restriction itself contains a number of exceptions. several of these are summarized below. declaration of intention exception. the prohibition',
6970:'does not apply to a person in the federal service on the date of enactment of the appropriation act containing',
6971:'the prohibition who is actually residing in the united states, is eligible for citizenship, and has filed a declaration of',
6972:'intention to become a citizen. the employee must have filed the declaration prior to the date of enactment. subsequent filing',
6973:'will not cure the disqualification. 17 comp. gen. 1104 1938. a declaration timely filed but which had become void by',
6974:'operation of law due to lapse of time has also been held insufficient. b138854, apr. 1, 1959. specific country exceptions.',
6975:'the statute typically exempts nationals of certain specified countries. the countries specified in any given 53 the cited decision refers',
6976:'to the naval industrial fund established under 10 u.s.c. § 2208. the decision makes no mention of the statutory exemption',
6977:'for the defense department, which was in effect in 1967. for purposes of this discussion, whether b161976 could have been',
6978:'disposed of more simply based on the department’s exemption is irrelevant. the decision is cited here merely for the proposition',
6979:'noted in the text. page 494 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose appropriation act change from',
6980:'time to time according to the political climate. dual citizenship will not negate the exception as long as one of',
6981:'the countries is within the exception, even where the individual has entered the united states from the nonexempt country. b194929,',
6982:'june 20, 1979. allied country exception. the prohibition does not apply to nationals of “countries allied with the united states',
6983:'in the current defense effort.” gao will not decide whether a country meets this test. the determination is the responsibility',
6984:'of the employing agency, perhaps with the assistance of the state department. gao will not question a determination based on',
6985:'reasonable grounds. 35 comp. gen. 216 1955; b151064, mar. 25, 1963; b146142, june 22, 1961; b139667, june 22, 1959. the',
6986:'reason for gao’s position is that “it is not the responsibility nor the proper province of the accounting officers to',
6987:'initially determine political facts.” b107288, feb. 14, 1952; b107579, feb. 14, 1952. given the facts and circumstances at the time,',
6988:'gao ventured an assertion in the more obvious cases. for instance, gao has said that britain meets the test. 73',
6989:'comp. gen. 319 1994. we have also opined that canada and japan meet the test. b188852, july 19, 1977; b133877,',
6990:'oct. 16, 1957; b113780, mar. 4, 1953. even in these cases, the determination, strictly speaking, is up to the employing',
6991:'agency. allegiance exception. the prohibition does not apply to a person who “owes allegiance to the united states.” this means',
6992:'“absolute and permanent allegiance” as distinguished from “qualified and temporary allegiance.” 17 comp. gen. 1047 1938; b119760, apr. 27, 1954.',
6993:'the exemption was apparently prompted by a concern for noncitizen inhabitants of u.s. territorial possessions; for example, “filipinos in the',
6994:'service of the united states on march 28, 1938.” 17 comp. gen. at 1048. the allegiance exception includes a clause',
6995:'to the effect that a signed affidavit will be regarded as prima facie evidence of allegiance. this clause has been',
6996:'construed to apply to noncitizen nationals, that is, noncitizen inhabitants of u.s. territorial possessions and not to resident aliens. yuen',
6997:'v. internal revenue service, 497 f. supp. 1023 s.d.n.y. 1980, aff’d, 649 f.2d 163 2nd cir. 1981. the district court',
6998:'opinion includes an exhaustive review of legislative history. emergency exception. the prohibition does not apply to “temporary employment in the',
6999:'field service …as a result of emergencies.” the term page 495 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations:',
7000:'purpose c. forfeiture of annuities and retired pay “emergency” in this context means “flood, fire, or other catastrophe.” b146142, june',
7001:'22, 1961. see also 73 comp. gen. 319 1994. an alien appointed in contravention of the statutory prohibition may not',
7002:'retain compensation already paid. 35 comp. gen. 216 1955; 18 comp. gen. 815 1939. the statute expressly gives the united',
7003:'states the right to recover. if there is no statutory bar—for example, if the employment would have qualified under the',
7004:'“allied country” exception but the agency failed to make the required determination—the alien may be paid as a “de facto',
7005:'employee.” earlier decisions distinguished between appointments “void ab initio” and those that are merely “voidable.” e.g., 37 comp. gen. 483',
7006:'1958; 35 comp. gen. 216 1955; b188852, july 19, 1977; b178882, aug. 29, 1973. the distinction proved confusing and gao',
7007:'has moved away from it. the current rule is stated in 58 comp. gen. 734 1979. as a final note,',
7008:'the supreme court in 1976 invalidated a civil service commission regulation requiring citizenship as a prerequisite to federal employment. hampton',
7009:'v. mow sun wong, 426 u.s. 88 1976. the court did not, however, invalidate the appropriation act restrictions. see b188507,',
7010:'dec. 16, 1977. the yuen litigation cited earlier specifically upheld the restriction against a charge of violation of the equal',
7011:'protection clause. 1 general principles under 5 u.s.c. § 8312 the socalled “hiss act”, a civilian employee of the united',
7012:'states or a member of the uniformed services who is convicted of certain criminal offenses relating to the national security',
7013:'will forfeit his or her retirement annuity or retired pay. further, the annuity or retired pay may not be paid',
7014:'to the convicted employees survivors or beneficiaries. the offenses that will result in forfeiture are specified in the statute. examples',
7015:'are: gathering or delivering defense information to aid a foreign government; gathering, transmitting, or losing defense information; disclosure of classified',
7016:'information; espionage; sabotage; treason; rebellion or insurrection; seditious conspiracy; advocating the overthrow of the government; enlistment to serve in an',
7017:'armed force against the united states; and certain violations of the atomic energy act. in addition, perjury by falsely denying',
7018:'the commission of one of the specified offenses is itself an offense for purposes of forfeiture. an employee for purposes',
7019:'of 5 u.s.c. § 8312 includes a member of congress and an individual employed by the government of the district',
7020:'of page 496 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose columbia. 5 u.s.c. § 83111. the specific',
7021:'types of retirement annuities and retired pay subject to forfeiture are enumerated in 5 u.s.c. §§ 83112 and 3. since',
7022:'5 u.s.c. § 8312 imposes a forfeiture, it is penal in nature. therefore, it must be strictly construed. gao will',
7023:'not construe the statute as applicable to situations that are not expressly covered by its terms. 35 comp. gen. 302',
7024:'1955. in the absence of an authoritative judicial decision to the contrary, the effective date of a conviction for stoppage',
7025:'of retired pay should be determined in a manner which will result in the least expenditure of public funds. thus,',
7026:'the date a guilty verdict is returned should be considered the date of conviction rather than a later date when',
7027:'the judgment is ordered executed, and retired pay should be stopped the following day. 39 comp. gen. 741 1960. using',
7028:'the cited decision to illustrate: the jury returned a guilty verdict on december 2, 1959; judgment was entered on january',
7029:'29, 1960; the date of conviction is december 2, 1959, and retired pay should be stopped effective december 3. in',
7030:'the absence of an authoritative judicial decision to the contrary, a plea of “nolo contendere” should be regarded as a',
7031:'conviction for purposes of 5 u.s.c. § 8312. 41 comp. gen. 62 1961. 2 the alger hiss case the event',
7032:'that, more than any other single incident, gave rise to the original enactment of 5 u.s.c. § 8312, was the',
7033:'case of alger hiss. a former state department employee, hiss was convicted in 1950 of perjury stemming from testimony before',
7034:'a grand jury investigating alleged espionage violations. when hiss was released from prison after serving his sentence, considerable public and',
7035:'congressional attention was directed at the fact that he was still entitled to receive his government pension. given the political',
7036:'climate of the times, the result was the enactment of 5 u.s.c. § 8312 in 1954 pub. l. no. 769,',
7037:'ch. 1214, 68 stat. 1142 sept. 1, 1954. hiss applied for his pension in 1967 and the then civil service',
7038:'commission denied the application based on 5 u.s.c. § 8312. he subsequently sued for restoration of his forfeited pension. in',
7039:'hiss v. hampton, 338 f. supp. 1141 d.d.c. 1972, the court, finding that the statute had been aimed more at',
7040:'punishing alger hiss than regulating the federal service, held 5 u.s.c. § 8312 to be an ex post facto law',
7041:'and therefore unconstitutional as it had page 497 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose been applied',
7042:'to hiss for conduct which occurred prior to the date of its enactment. therefore, the court ordered the civil service',
7043:'commission to pay hiss his annuity retroactively with interest. the hiss case gave rise to two gao decisions—52 comp. gen.',
7044:'175 1972, aff’d, b115505, dec. 21, 1972—holding that the interest payable to hiss, as with the annuity itself, must be',
7045:'paid from the civil service retirement fund rather than the permanent judgment appropriation, 31 u.s.c. § 1304. the court case',
7046:'and decisions are summarized in b115505, may 15, 1973. 3 types of offenses covered under the original version of 5',
7047:'u.s.c. § 8312, forfeiture was not strictly limited to national security offenses. an employee could lose his or her retirement',
7048:'annuity or retired pay simply by committing a felony “in the exercise of his authority, influence, power, or privileges as',
7049:'an officer or employee of the government.” there were numerous examples of forfeitures for such infractions as falsifying a travel',
7050:'voucher or using a governmentowned vehicle for personal purposes.54 recognizing that in many cases the punishment was too severe for',
7051:'the offense, especially in cases where the offense occurred after many years of government service, congress amended the statute in',
7052:'1961 pub. l. no. 87299, 75 stat. 640 sept. 26, 1961 to limit it to offenses relating to national security',
7053:'and to “retroactively remove therefrom those provisions of the statute which prohibited payment of annuities and retired pay to persons',
7054:'who commit offenses, acts or omissions which do not involve the security of the united states.” 41 comp. gen. 399,',
7055:'400 1961. thus, numerous offenses which would have caused forfeiture before 1961 no longer do. see, e.g., b155823, sept. 15,',
7056:'1965 conspiracy to embezzle government funds; b155558, nov. 25, 1964 false statement. of course, to the extent that the pre1961',
7057:'decisions establish principles apart from the specific offenses involved, such as the general principles noted above, they remain valid. the',
7058:'original 1954 enactment of 5 u.s.c. § 8312 did not expressly cover offenses under the uniform code of military justice',
7059:'ucmj, and this omission generated many gao decisions prior to the 1961 amendment. e.g., 40 comp. gen. 601 1961; 38',
7060:'comp. gen. 310 1958; 35 comp. gen. 302 1955. the ucmj decisions came to an abrupt halt with the 54',
7061:'see, e.g., 41 comp. gen. 114 1961; 40 comp. gen. 364 1960; 40 comp. gen. 176 1960. page 498 gao04261sp',
7062:'appropriations law—vol. i chapter 4 availability of appropriations: purpose enactment of the 1961 amendment. the current version of 5 u.s.c.',
7063:'§ 8312 expressly covers ucmj offenses, again limited to national security violations. now, a conviction under the ucmj will produce',
7064:'a forfeiture if the offense involves certain ucmj articles specified in the statute, or if it involves any other article',
7065:'of the ucmj where the charges and specifications describe a violation of certain of the united states code offenses, and',
7066:'if the “executed sentence” includes death, dishonorable discharge, or dismissal from the service. 4 related statutory provisions when a forfeiture',
7067:'is invoked under 5 u.s.c. § 8312, the individual is entitled to a refund of his contribution toward the annuity',
7068:'less any amounts already paid out or refunded. 5 u.s.c. § 8316. forfeiture may not be invoked where an individual',
7069:'is convicted of an offense “as a result of proper compliance with orders issued, in a confidential relationship, by an',
7070:'agency or other authority” of the united states government or the district of columbia government. 5 u.s.c. § 8320. if',
7071:'a payment of annuity or retired pay is made in violation of 5 u.s.c. § 8312 “in due course and',
7072:'without fraud, collusion, or gross negligence,” the relevant accountable officer will not be held responsible. 5 u.s.c. § 8321. in',
7073:'addition to 5 u.s.c. § 8312, retirement annuities or retired pay may be forfeited for willful absence from the united',
7074:'states to avoid prosecution for a section 8312 offense 5 u.s.c. § 8313; refusal to testify in national security matters',
7075:'5 u.s.c. § 8314;55 or knowingly falsifying certain national securityrelated aspects of a federal or district of columbia employment application',
7076:'5 u.s.c. § 8315. 55 construed by the justice department as applicable to proceedings involving the individual’s own loyalty or',
7077:'knowledge of activities or plans that pose a serious threat to national security. 1 op. off. legal counsel 252 1977.',
7078:'page 499 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose 5. entertainment— recreation—morale and welfare a. introduction the',
7079:'concept to be explored in this section is the rule that appropriated funds may not be used for entertainment except',
7080:'when specifically authorized by statute and also authorized or approved by proper administrative officers. e.g., 69 comp. gen. 242 1990;',
7081:'43 comp. gen. 305 1963. the basis for the rule is that entertainment is essentially a personal expense even where',
7082:'it occurs in some businessrelated context. except where specifically appropriated for, entertainment cannot normally be said to be necessary to',
7083:'carry out the purposes of an appropriation. the reader will readily note the sharp distinction between government practice and corporate',
7084:'practice in this regard. “entertainment” as a businessrelated expense is an established practice in the corporate sector. no one questions',
7085:'that it can be equally businessrelated for a government agency. the difference—and the policy underlying the rule for the government—is',
7086:'summarized in the following passage from b223678, june 5, 1989: “the theory is not so much that these items can',
7087:'never be businessrelated, because sometimes they clearly are. rather, what the decisions are really saying is that, because public confidence',
7088:'in the integrity of those who spend the taxpayers’ money is essential, certain items which may appear frivolous or wasteful—however',
7089:'legitimate they may in fact be in a specific context—should, if they are to be charged to public funds, be',
7090:'authorized specifically by the congress.” another way of expressing this idea is found in the following passage from b288266, jan.',
7091:'27, 2003: “[r]eference to ‘common business practice’ is not in itself an adequate justification for spending public money on food',
7092:'or, for that matter, other objects. an expenditure of public funds must be anchored in existing law, not the practices',
7093:'and conventions of the private sector.” page 4100 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose 1 application',
7094:'of the rule as a general proposition, the rule applies to all federal departments and agencies operating with appropriated funds.',
7095:'for example, in 1977 it was held applicable to the alaska railroad. b124195o.m., aug. 8, 1977. the question in b170938,',
7096:'oct. 30, 1972, was whether the entertainment prohibition applied to the revolving fund of the national credit union administration. the',
7097:'fund is derived from fees collected from federal credit unions and not from direct appropriations from the treasury. nevertheless, the',
7098:'authority to retain and use the collections constitutes a continuing appropriation since, but for that authority, the fees would have',
7099:'to be deposited in the treasury and congress would have to make annual appropriations for the agency’s expenses. therefore, the',
7100:'revolving fund could not be used for entertainment. there are three situations in which the rule has not been applied.',
7101:'the first is certain government corporations. for example, the corporation for public broadcasting, since it was established as a private',
7102:'nonprofit corporation and is not an agency or establishment of the u.s. government notwithstanding that it receives appropriations, could use',
7103:'its funds to hold a reception in the cannon house office building. b131935, july 16, 1975. the rule has also',
7104:'been held not to apply to government corporations that are classed as government agencies but which have statutory authority to',
7105:'determine the character and necessity of their expenditures. b127949, may 18, 1956 saint lawrence seaway development corporation; b35062, july 28,',
7106:'1943. there are limits, however. see, e.g., b45702, nov. 22, 1944, disallowing the cost of a “luncheon meeting” of government',
7107:'employees. the second exception is donated funds where the recipient agency has statutory authority to accept and retain the gift.',
7108:'the availability of donated funds for entertainment is discussed further, with case citations, in chapter 6. the third exception, infrequently',
7109:'applied, is for certain commissions with statutory authority to procure supplies, services, or property, and to make contracts, without regard',
7110:'to the laws and procedures applicable to federal agencies, and to exercise those powers that are necessary to enable the',
7111:'commission to carry out the purposes for which it was established efficiently and in the public interest. b138969, apr. 16,',
7112:'1959 lincoln page 4101 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose sesquicentennial commission; b138925, apr. 15, 1959',
7113:'civil war centennial commission; b129102, oct. 2, 1956 woodrow wilson foundation. 2 what is entertainment? the comptroller general has not',
7114:'attempted a precise definition of the term “entertainment.” in one decision, gao noted that one court had defined the term',
7115:'as “a source or means of amusement, a diverting performance, especially a public performance, as a concert, drama, or the',
7116:'like.” another court said that entertainment “denotes that which serves for amusement and amusement is defined as a pleasurable occupation',
7117:'of the senses, or that which furnishes it, as dancing, sports, or music.” 58 comp. gen. 202, 205 1979,56 overruled',
7118:'on other grounds, 60 comp. gen. 303 1981. for purposes of this discussion, the term entertainment, as used in decisions',
7119:'of the comptroller general and comptroller of the treasury, is an “umbrella” term that includes: food and drink, either as',
7120:'formal meals or as snacks or refreshments; receptions, banquets, and the like; music, live or recorded; live artistic performances; and',
7121:'recreational facilities. our treatment includes one other category that, even though not entertainment as such, is closely related to the',
7122:'entertainment cases: facilities for the welfare or morale of employees. earlier decisions from time to time had occasion to address',
7123:'the components of entertainment. can it include liquor? responding to an inquiry from the navy, a comptroller of the treasury,',
7124:'obviously not a teetotaler, said: “entertainments …without wines, liquors or cigars, would be like the play of hamlet with the',
7125:'melancholy dane entirely left out of the lines.” 14 comp. dec. 344, 346 1907.57 in a 1941 decision b20085, sept.',
7126:'10, 1941, the coordinator of inter american affairs asked whether authorized entertainment could include 56 citing, respectively, people v. klaw,',
7127:'106 n.y.s. 341, 351 ct. gen. sess. 1907, and young v. board of trustees of broadwater county high school, 90',
7128:'mont. 576, 4 p.2d 725, 726 1931. 57 the comptroller of the treasury’s comments should not be confused with the',
7129:'rule that alcoholic beverages are not reimbursable as subsistence expenses. b164366, mar. 31, 1981; b164366, aug. 16, 1968; b157312, may',
7130:'23, 1966. the exclusion applies even against a claim that consumption of alcohol is required by religious beliefs. b202124, july',
7131:'17, 1981. page 4102 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose b. food for government employees such',
7132:'items as cocktail parties, banquets and dinners, theater attendance, and sightseeing parties. the comptroller general, recognizing that an appropriation for',
7133:'entertainment conferred considerable discretion, replied, in effect, “all of the above.” that’s entertainment. it may be stated as a general',
7134:'rule that appropriated funds are not available to pay subsistence or to provide free food to government employees at their',
7135:'official duty stations “at headquarters” unless specifically authorized by statute. in addition to the obvious reason that food is a',
7136:'personal expense and government salaries are presumed adequate to enable employees to eat regularly,58 furnishing free food might violate 5',
7137:'u.s.c. § 5536, which prohibits an employee from receiving compensation in addition to the pay and allowances fixed by law.',
7138:'see, e.g., 68 comp. gen. 46, 48 1988; 42 comp. gen. 149, 151 1962; b272985, dec. 30, 1996; see also',
7139:'the dual compensation discussion in this chapter, section c.4.a. the “free food” rule applies to snacks and refreshments as well',
7140:'as meals. for example, in 47 comp. gen. 657 1968, the comptroller general held that internal revenue service appropriations were',
7141:'not available to serve coffee to either employees or private individuals at meetings. similarly prohibited was the purchase of coffeemakers',
7142:'and cups. although serving coffee or refreshments at meetings may be desirable, it generally is not considered a “necessary expense”',
7143:'in the context of appropriations availability. see also b233807, aug. 27, 1990; b159633, may 20, 1974. the question of food',
7144:'for government employees arises in many contexts and there are certain welldefined exceptions. for example, the government may pay for',
7145:'the meals of civilian and military personnel in travel status because there is specific statutory authority to do so.59 the',
7146:'rule and exception are illustrated by 65 comp. gen. 16 1985, in which the question was whether the national oceanic',
7147:'and atmospheric administration could provide inflight meals, at government expense, to persons on extended flights on government aircraft engaged in',
7148:'weather research. the answer was yes for government personnel in travel status, no 58 “feeding oneself is a personal expense',
7149:'which a government employee is expected to bear from his or her salary.” 65 comp. gen. 738, 739 1986; b288536,',
7150:'nov. 19, 2001. 59 5 u.s.c. § 5702 civilian employees; 37 u.s.c. § 404 military personnel. page 4103 gao04261sp appropriations',
7151:'law—vol. i chapter 4 availability of appropriations: purpose for anyone else, including government employees not in official travel status. see',
7152:'also b256938, sept. 21, 1995 because the aircraft and its airbase were determined to be a u.s. customs aircraft pilot’s',
7153:'permanent duty station, the pilot could be reimbursed only for meals purchased incident to duties performed away from the aircraft',
7154:'outside the limits of his official duty station. while feeding employees may not be regarded as a “necessary expense” as',
7155:'a general proposition, it may qualify when the agency is carrying out some particular statutory function where the necessary relationship',
7156:'can be established. thus, in b201186, mar. 4, 1982, it was a permissible implementation of a statutory accident prevention program',
7157:'for the marine corps to set up rest stations on highways leading to a marine base to serve coffee and',
7158:'doughnuts to marines returning from certain holiday weekends. another example is 65 comp. gen. 738 1986 refreshments at awards ceremonies,',
7159:'discussed later in this section. a related example is b235163.11, feb. 13, 1996, in which gao determined that appropriated funds',
7160:'could be used to pay for the dinner of a nonfederal award recipient and her spouse at a national science',
7161:'foundation awards ceremony because of the statutory nature of the award. exceptions of this type illustrate the relativity of the',
7162:'necessary expense doctrine pointed out earlier in our general discussion. we turn now to a discussion of the rule and',
7163:'its exceptions in several other contexts. 1 working at official duty station under unusual conditions the wellsettled rule is that,',
7164:'except in extreme emergencies that are explained below, the government may not furnish free food the decisions sometimes get technical',
7165:'and use terms like “per diem” or “subsistence” to employees at their official duty station, even when they are working',
7166:'under unusual circumstances.60 an early illustration is 16 comp. gen. 158 1936, in which the expense of meals was denied',
7167:'to an internal revenue investigator who was required to maintain a 24hour surveillance. the reason payment was denied is that',
7168:'the investigator would presumably have eaten and incurred the expense of 60 the cases under this heading obviously do not',
7169:'involve entertainment as most of us understand the term. the rule, however, fits under the same conceptual umbrella. page 4104',
7170:'gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose three meals a day even if he had not been',
7171:'required to work the 24hour shift. a similar example is b272985, dec. 30, 1996, in which the expense of meals',
7172:'was denied to a central intelligence agency cia security detail while providing 24hour security to the director or deputy director',
7173:'of the cia. payment was also denied in 42 comp. gen. 149 1962, where a postal official had bought carryout',
7174:'restaurant food for postal employees conducting an internal election who were required to remain on duty beyond regular working hours.61',
7175:'similarly, the general rule was applied to deny reimbursement for food in the following situations: federal mediators required to conduct',
7176:'mediation sessions after regular hours. b169235, apr. 6, 1970; b141142, dec. 15, 1959. district of columbia police officers involved in',
7177:'cleanup work after a fire in a municipal building. b118638.104, feb. 5, 1979. geological survey inspectors at offshore oil rigs',
7178:'who had little alternative than to buy lunch from private caterers at excessive prices. b194798, jan. 23, 1980. see also',
7179:'b202104, july 2, 1981 secret service agents on 24houraday assignment required to buy meals at high cost hotels. law enforcement',
7180:'personnel retained at staging area for security purposes prior to being dispatched to execute search warrants. b234813, nov. 9, 1989.',
7181:'air force enlisted personnel assigned to a security detail at an offbase social event. b232112, mar. 8, 1990. an exception',
7182:'was permitted in 53 comp. gen. 71 1973. in that case, the unauthorized occupation of a building in which the',
7183:'bureau of indian affairs was located necessitated the assembling of a cadre of general services administration special police, who unexpectedly',
7184:'spent the whole 61 this and several other cases cited in the text also involve the “voluntary creditor” rule, discussed',
7185:'in chapter 12 volume iii of the second edition of principles of federal appropriations law. page 4105 gao04261sp appropriations law—vol.',
7186:'i chapter 4 availability of appropriations: purpose night there in alert status until relieved the following morning. agency officials purchased',
7187:'and brought in sandwiches and coffee for the cadre. gao concluded that it would not question the agency’s determination that',
7188:'the expenditure was incidental to the protection of government property during an extreme emergency involving danger to human life and',
7189:'the destruction of federal property, and approved reimbursement. the decision emphasized, however, that it was an exception and that the',
7190:'rule still stands. a similar exception was permitted in b189003, july 5, 1977, where agents of the federal bureau of',
7191:'investigation fbi had been forced to remain at their duty stations within the office during a severe blizzard in buffalo,',
7192:'new york. the area was in a state of emergency and was later declared a national disaster area. gao agreed',
7193:'with the agency’s determination that the situation presented a danger to human life of buffalo citizens and that it was',
7194:'imperative for fbi employees to maintain the essential functions of the office during the emergency. the rationale of 53 comp.',
7195:'gen. 71 and b189003 was applied in b232487, jan. 26, 1989, for government employees required to work continually for a',
7196:'24hour period to evacuate and secure an area threatened by the derailment of a train carrying toxic liquids. the exception,',
7197:'however, is limited. the requirement to remain on duty for a 24hour period, standing alone, is not enough. in b185159,',
7198:'dec. 10, 1975, for example, the cost of meals was denied to treasury department agents required to work over 24',
7199:'hours investigating a bombing of federal offices. the comptroller general pointed out that dangerous conditions alone are not enough. under',
7200:'the exception established in 53 comp. gen. 71, it is necessary to find that the situation involves imminent danger to',
7201:'human life or the destruction of federal property. also, in that case, the agents were only investigating a dangerous situation',
7202:'that had already occurred and there was no suggestion that any further bombings were imminent. a similar case is b217261,',
7203:'apr. 1, 1985, involving a customs service official required to remain in a motel room for several days on a',
7204:'surveillance assignment. see also 16 comp. gen. 158 1936; b202104, july 2, 1981. short of the emergency situation described in',
7205:'b189003, july 5, 1977, inclement weather is not enough to support an exception. there are numerous cases in which employees',
7206:'have spent the night in motels rather than returning home in a snowstorm, in order to be able to get',
7207:'to work the following day. reimbursement for meals has consistently been denied. page 4106 gao04261sp appropriations law—vol. i chapter 4',
7208:'availability of appropriations: purpose 68 comp. gen. 46 1988; 64 comp. gen. 70 1984; b226403, may 19, 1987; b200779, aug.',
7209:'12, 1981; b188985, aug. 23, 1977. it makes no difference that the employee was directed by his or her supervisor',
7210:'to rent the room b226403 and b188985,62 or that the federal government in washington was shut down 68 comp. gen.',
7211:'46.63 naturally, statutory authority will overcome the prohibition. thus, where the veterans administration va had statutory authority to accept uncompensated',
7212:'services and to contract for related “necessary services,” the va could, upon an administrative determination of necessity, contract with local',
7213:'restaurants for meals to be furnished without charge to uncompensated volunteer workers at va outpatient clinics when their scheduled assignment',
7214:'extended over a meal period. b145430, may 9, 1961. similarly, in b241708, sept. 27, 1991, the comptroller general determined that',
7215:'because the bureau of indian affairs bia hired emergency firefighters under special statutory authority, 43 u.s.c. § 1469, bia’s practice',
7216:'of furnishing hot meals and snack lunches for emergency firefighters was legally permissible. there is also authority to make subsistence',
7217:'payments to law enforcement officials and members of their immediate families when threats to their lives force them to occupy',
7218:'temporary accommodations. 5 u.s.c. § 5706a.64 2 government employees training act the government employees training act training act authorizes agencies',
7219:'to “pay …for all or a part of the necessary expenses of training,” 5 u.s.c. § 4109, and to pay',
7220:'“for expenses of attendance at meetings which 62 a supervisor has no authority to do so. as noted in b226403,',
7221:'such an erroneous exercise of authority does not bind the government. 63 while the storm in 68 comp. gen. 46',
7222:'was certainly more than flurries, it nevertheless remains the case that the government in washington will be disrupted by storms',
7223:'that do not approach the severity of the buffalo blizzard in b189003. there is also a practical distinction. to feed',
7224:'and lodge a potentially large number of employees every time it snows in washington is simply not realistic. 64 federal',
7225:'employees may not accept donations of food, except where the recipient agency has statutory authority to accept and retain the',
7226:'donation. one example of such authority is found in the legislative branch appropriations act for fiscal year 2002. the act',
7227:'permits the u.s. capitol police to “accept contributions of meals and refreshments” during a period of emergency, as determined by',
7228:'the capitol police board. pub. l. no. 10768, § 121, 115 stat. 560, 576 nov. 12, 2001, codified at 2',
7229:'u.s.c. § 1971. the use of donations and contributions is discussed further in chapter 6. page 4107 gao04261sp appropriations law—vol.',
7230:'i chapter 4 availability of appropriations: purpose are concerned with the functions or activities for which the appropriation is made,”',
7231:'5 u.s.c. § 4110, regardless of whether the event is held within the employees’ official duty station. the comptroller general',
7232:'has interpreted and applied the training act to accommodate the daytoday realities of governmental operations within the limits imposed by',
7233:'the statutes and has determined that the training act permits agencies to pay for the costs of meals and refreshments',
7234:'at meetings and training events under specific circumstances, which are outlined below. b288266, jan. 27, 2003; b233807, aug. 27, 1990.',
7235:'a attendance at meetings and conferences in section c.2 of this chapter, we discuss when appropriated funds may be used',
7236:'to finance the attendance of government employees at meetings and conferences. this section addresses when the government may pay for',
7237:'meals at meetings and conferences when attendance is authorized under the principles and statutes set forth in section c.2. as',
7238:'the reader will discover from the discussion that follows, there are many authorities available to planners of meetings and conferences',
7239:'for this purpose, and planners should become familiar with them. for daytoday routine business meetings, our case law has consistently',
7240:'held that the training act does not provide authority to use appropriations to supply food items. as our case law',
7241:'demonstrates, agencies appear to struggle with this rule. in this regard, our case law is not static nor inflexible. as',
7242:'recent history demonstrates, gao is willing to reexamine its case law and to revise, to the extent permitted by law,',
7243:'rules that agency officials believe frustrate efficient, effective, and responsible government. b288266, jan. 27, 2003. any revision, of course, must',
7244:'be founded on sound legal reasoning, and must include appropriate controls to prevent abuses and ensure public confidence in the',
7245:'integrity of those who spend the taxpayers money. for meetings sponsored by nongovernment organizations, the attendee will commonly be charged',
7246:'a fee, usually but not necessarily called a registration fee. if a single fee is charged covering both attendance and',
7247:'meals and no separate charge is made for meals, the government may pay the full fee, assuming of course that',
7248:'funds are otherwise available for the cost of attendance. 38 comp. gen. 134 1958; b249351, may 11, 1993; b233807, aug.',
7249:'27, 1990; b66978, aug. 25, 1947. the same is true for an evening social event where the cost is a',
7250:'mandatory nonseparable element of the registration fee. 66 comp. gen. 350 1987. page 4108 gao04261sp appropriations law—vol. i chapter 4',
7251:'availability of appropriations: purpose if a separate charge is made for meals, the government may pay for the meals if',
7252:'there is a showing that 1 the meals are incidental to the meeting; 2 attendance of the employee at the',
7253:'meals is necessary to full participation in the business of the conference; and 3 the employee is not free to',
7254:'take the meals elsewhere without being absent from essential formal discussions, lectures, or speeches concerning the purpose of the conference.',
7255:'b233807, aug. 27, 1990; b160579, apr. 26, 1978; b166560, feb. 3, 1970. absent such a showing, the government may not',
7256:'pay for the meals. b154912, aug. 26, 1964; b152924, dec. 18, 1963; b95413, june 7, 1950; b88258, sept. 19, 1949.',
7257:'as an examination of the cited cases will reveal, these rules apply regardless of whether the conference takes place within',
7258:'the employees duty station area or someplace else. where the government is authorized to pay for meals under the above',
7259:'principles, the employee normally cannot be reimbursed for purchasing alternate meals. see b193504, aug. 9, 1979; b186820, feb. 23, 1978.',
7260:'personal taste is irrelevant. thus, an employee who, for example, loathes broccoli will either have to eat it anyway, pay',
7261:'for a substitute meal from his or her own pocket, or go without. for an employee on travel or temporary',
7262:'duty status, which is where this rule usually manifests itself, per diem is reduced by the value of the meals',
7263:'provided. e.g., 60 comp. gen. 181, 183– 84 1981. the rule will not apply, however, where the employee is unable',
7264:'to eat the meal provided and cannot arrange for an acceptable substitute because of bona fide medical or religious reasons.',
7265:'b231703, oct. 31, 1989 per diem not required to be reduced where employee, an orthodox jew who could not obtain',
7266:'kosher meals at conference, purchased substitute meals elsewhere. the above rules will not apply to daytoday routine agencysponsored meetings. gao',
7267:'has described “daytoday” business meetings as meetings that involve discussions of the internal procedures or operations of the agency. see',
7268:'68 comp. gen. 604, 605 1989. meetings or conferences that are not routine involve topical matters of general interest that',
7269:'might appeal to governmental and nongovernmental participants. id. attendance at routine agencysponsored meetings will generally be subject to the prohibition',
7270:'on furnishing free food to employees at their official duty stations. thus the cost of meals could not be provided',
7271:'at a conference of field examiners of the national credit union administration. b180806, aug. 21, 1974. use of appropriated funds',
7272:'was prohibited for coffee breaks at a management seminar, b159633, may 20, 1974; meals served during “working sessions” at department',
7273:'of labor business meetings, b168774, jan. 23, 1970; and meals at monthly luncheon meetings for officials of law page 4109',
7274:'gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose enforcement agencies, b198882, mar. 25, 1981. appropriated funds also could',
7275:'not be used for meals at quarterly managers meetings of the u.s. army corps of engineers, 72 comp. gen. 178',
7276:'1993, and meals and refreshments served to government employees attending federal communication commission radio spectrum auctions. b260692, jan. 2, 1996.',
7277:'see also 47 comp. gen. 657 1968; b45702, nov. 22, 1944. in b137999, dec. 16, 1958, the commissioners of the',
7278:'outdoor recreation resources review commission had statutory authority to be reimbursed for actual subsistence expenses. this was held to include',
7279:'the cost of lunches during meetings at a washington hotel. however, the cost of lunches for staff members of the',
7280:'commission could not be paid. merely calling the cost of meals a “registration fee” will not avoid the prohibition. in',
7281:'a 1975 case, the cost of meals was disallowed for army employees at an armysponsored “operations and maintenance seminar.” the',
7282:'charge had been termed a registration fee but covered only luncheons, dinner, and coffee breaks. b182527, feb. 12, 1975. see',
7283:'also b195045, feb. 8, 1980. in b187150, oct. 14, 1976, grant funds provided to the government of the district of',
7284:'columbia under the social security act for personnel training and administrative expenses could not be used to pay for a',
7285:'luncheon at a 4hour conference of officials of the d.c. department of human resources. the conference could not be reasonably',
7286:'characterized as training and did not qualify as an allowable administrative cost under the program regulations. while 5 u.s.c. §',
7287:'4110 does not apply to a routine business meeting, in b281063, dec. 1, 1999, the nuclear regulatory commission nrc could',
7288:'pay an allinclusive facility rental fee for a meeting to discuss internal matters, even though the fee resulted in food',
7289:'being served to nrc employees at their official duty stations. because the fee would have remained the same for nrc',
7290:'whether or not it accepted and its employees ate the food, the harm that the general rule is meant to',
7291:'prevent i.e., expenditure of federal funds on personal items was not present. in january 2000, the general services administration gsa',
7292:'published an amendment to the federal travel regulations to address “conference planning.” 41 c.f.r. pts. 30111 and 430174, 65 fed.',
7293:'reg. 1326 jan. 10, 2000. the amendment defined “conference” as “[a] meeting, retreat, seminar, symposium or event that involves attendee',
7294:'travel.” the page 4110 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose amendment included a provision permitting agencies',
7295:'to pay for light refreshments for agency employees at conferences. 41 c.f.r. § 30174.11. in agency guidance explaining the regulation,',
7296:'gsa advised agencies that they could use appropriated funds to pay for refreshments for nontravelers at some conferences. in particular,',
7297:'gsa advised that if the majority of the attendees were in travel status, the agency could fund refreshments for all',
7298:'attendees. in a 2003 decision, gao explained that gsa’s statutory basis for the light refreshment provision is 5 u.s.c. §',
7299:'5702, which addresses the subsistence expenses of federal employees “when traveling on official business away from the employees designated post',
7300:'of duty”; therefore, while congress has authorized gsa to prescribe regulations necessary for the administration of travel and subsistence expenses,',
7301:'gsa’s authority does not extend to employees who are not in travel status. b288266, jan. 27, 2003.65 accordingly, gao held',
7302:'that the light refreshment provision of the travel regulation applies only to federal employees who are in travel status. id.66',
7303:'the decision also clarified that although section 4110 generally applies only to meetings sponsored by nongovernmental organizations, the comptroller general',
7304:'extended section 4110 to a governmentsponsored meeting, regardless of whether an employee is in travel status or not, as long',
7305:'as the meeting satisfies the same conditions as required for nongovernmentsponsored meetings and the governmentsponsored meeting is not an internal',
7306:'daytoday business meeting. in response to this decision, gsa agreed that its authority extended only to employees in travel status',
7307:'and in its guidance would refer agencies to gao decisions holding that section 4110 of the training act authorizes agencies',
7308:'to provide light refreshments to nontravelers at a governmentsponsored meeting as long as the meeting meets the requirements of section',
7309:'4110 and is not a “daytoday” or “routine” business meeting. letter from raymond j. mcnamara, general counsel, gsa, to anthony',
7310:'h. gamboa, general counsel, gao, undated, received by gao june 9, 2003. 65 a brief mention should be made of',
7311:'the status of snacks and refreshments as subsistence. over the years, applying gsa regulations, gao objected to agencies reimbursing travelers',
7312:'for the actual expenses of various snacks or light refreshments consumed while in travel status. see, e.g., b167820, oct. 7,',
7313:'1969. gsa now interprets subsistence to include the light refreshments identified in its conference planning travel regulation. gao endorses this',
7314:'interpretation. b288266, jan. 27, 2003. 66 when light refreshments are furnished at nominal or no cost by the government, no',
7315:'deduction of per diem is required. 41 c.f.r. § 30174.21. page 4111 gao04261sp appropriations law—vol. i chapter 4 availability of',
7316:'appropriations: purpose in 1980, the president’s committee on employment of the handicapped held its annual meeting in the washington hilton',
7317:'hotel. the affair was to last 3 days and included a luncheon and two banquets. there was no registration fee',
7318:'for the meeting but there were charges for the meals. gao’s equal employment opportunity office planned to send three employees',
7319:'to the meeting and asked whether the agency could pick up the tab for the meals. the three employees were',
7320:'to make a presentation at the meeting and it seemed clear that attendance was authorized under 5 u.s.c. § 4110.',
7321:'also, if a registration fee were involved, the prior decisions noted above would presumably have answered the question. the comptroller',
7322:'general reviewed the precedents such as b160579, apr. 26, 1978, and b166560, feb. 3, 1970, and took the logical step',
7323:'of applying them to the situation at hand. thus, gao could pay for the meals if administrative determinations were made',
7324:'that 1 the meals were incidental to the meeting; 2 attendance at the meals was necessary for full participation at',
7325:'the meeting; and 3 the employees would miss essential formal discussions, lectures, or speeches concerning the purpose of the meeting',
7326:'if they took their meals elsewhere. b198471, may 1, 1980.67 this decision, so it seems, became perceived as the loophole',
7327:'through which the lunch wagon could be driven. so apparently compelling is the quest for free food that it became',
7328:'necessary to issue several additional decisions to clarify b198471 and to explain precisely what the rationale of that decision does',
7329:'and does not authorize. in 64 comp. gen. 406 1985, the comptroller general held that the cost of meals could',
7330:'not be reimbursed for employees attending monthly meetings of the federal executive association within their duty station area. the meetings',
7331:'were essentially luncheon meetings at which representatives of various government agencies could discuss matters of mutual interest. the decision stated:',
7332:'“what distinguishes [b198471] …is that the president’s annual meeting was a 3day affair with meals clearly incidental to the overall',
7333:'meeting, while in [the cases in which reimbursement has been denied] the only meetings which took place were the ones',
7334:'which took place during a 67 this is a relatively rare instance of the comptroller generals issuing a formal decision',
7335:'to a gao requester. although it does not happen often, it will be done when the situation warrants it. page',
7336:'4112 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose luncheon meal…. in order to meet the threepart test',
7337:'[of b198471], a meal must be part of a formal meeting or conference that includes not only functions such as',
7338:'speeches or business carried out during a seating at a meal but also includes substantial functions that take place separate',
7339:'from the meal. [w]e are unwilling to conclude that a meeting which lasts no longer than the meal during which',
7340:'it is conducted qualifies for reimbursement.” id. at 408 explanatory information provided. a similar case the following year, 65 comp.',
7341:'gen. 508 1986, reiterated that the abovequoted test of 64 comp. gen. 406 must precede the application of the threepart',
7342:'test of b198471. the threepart test, and hence the authority to reimburse, relates to a meal that is incident to',
7343:'a meeting, not a meeting that is incident to a meal. 65 comp. gen. at 510; 64 comp. gen. at',
7344:'408. see also b249249, dec. 17, 1992. two 1989 decisions, 68 comp. gen. 604 and 68 comp. gen. 606, defined',
7345:'the rules further, holding that 5 u.s.c. § 4110 and b198471 do not apply to purely internal business meetings or',
7346:'conferences sponsored by government agencies. see also 72 comp. gen. 178 1993; b247563, dec. 11, 1996; b270199, aug. 6, 1996;',
7347:'and b260692, jan. 2, 1996. noting that this result is consistent with the legislative history of 5 u.s.c. § 4110',
7348:'as summarized in prior decisions,68 both decisions stated: “we think …that there is a clear distinction between the payment of',
7349:'meals incidental to formal conferences or meetings, typically externally organized or sponsored, involving topical matters of general interest to governmental',
7350:'and nongovernmental participants, and internal business or informational meetings primarily involving the daytoday operations of government. with respect to the',
7351:'latter, 5 u.s.c. § 4110 has little bearing ….” 68 comp. gen. at 605 and 608. one of the decisions',
7352:'went a step further and commented that the claim in 65 comp. gen. 508 “should have been summarily rejected based',
7353:'on the application of the general rule.” 68 comp. 68 e.g., 46 comp. gen. 135, 136–37 1966; b140912, nov. 24,',
7354:'1959. page 4113 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose gen. at 609. naturally, if the meeting',
7355:'or conference does not have the necessary connection with official agency business, the cost of meals may not be paid',
7356:'regardless of who sponsors the meeting or where it is held. thus, a registration fee consisting primarily of the cost',
7357:'of a luncheon was disallowed for three community services administration employees attending a federal executive board meeting at which combined',
7358:'federal campaign cfc awards were to be presented. b195045, feb. 8, 1980.69 similarly, an employee of the department of housing',
7359:'and urban development could not be reimbursed for meals incident to meetings of a local business association. b166560, may 27,',
7360:'1969. in a 1981 case, the internal revenue service bought tickets for several of its agents to attend the fourth',
7361:'annual awards and scholarship dinner of the national association of black accountants. the purposes of attending the banquet were to',
7362:'establish contacts for recruitment purposes and to demonstrate the commitment of the irs to its equal employment opportunity program. however,',
7363:'attendance could not be authorized under either 5 u.s.c. § 4109 or 5 u.s.c. § 4110, and the expenditure was',
7364:'therefore prohibited by 5 u.s.c. § 5946. b202028, may 14, 1981. however, in b249249, dec. 17, 1992, the comptroller general',
7365:'held that the federal bureau of investigation fbi could reimburse an fbi agent for the cost of a retirement banquet.',
7366:'the agent represented the fbi at the banquet honoring a local police chief and presented him with a plaque and',
7367:'commendation letter from the fbi director. “the agent’s attendance at the function was in furtherance of the agency’s functions or',
7368:'activities for which its appropriations were made and the meal was incidental to the retirement ceremony.” the department of justice,',
7369:'office of legal counsel, applying this decision, stated that “[w]e believe that the comptroller general’s holding was correct and would',
7370:'be applicable to an employee of a united states attorney’s office attending the same kind of event under like circumstances.”',
7371:'17 op. off. legal counsel 70 1993. the office of legal counsel cautioned, however, that the application of the ruling',
7372:'should be carefully limited to where the nature of the ceremonial event “provides 69 a later decision, 67 comp. gen.',
7373:'254 1988, held that agencies may spend appropriated funds, within reason, to support efforts to solicit contributions to the cfc',
7374:'from their employees. while 67 comp. gen. 254 did not involve meals, it nevertheless raises the question of whether this',
7375:'aspect of b195045 insufficient relationship for purposes of 5 u.s.c. § 4110 would still be followed. either way, the disallowance',
7376:'in b195045 was correct because the meeting was within the “duty station area” and the fee was little more than',
7377:'a disguised charge for the lunch. page 4114 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose good reason',
7378:'to believe that the official or employee’s attendance advances the offices authorized functions.” id. before we depart the topic of',
7379:'meals at meeting and conferences, two cases involving a different twist—payment for meals not eaten—deserve mention. in b208729, may 24,',
7380:'1983, the army missile command sponsored a luncheon to commemorate dr. martin luther king, jr., that was open to both',
7381:'government employees and members of the local community. attendees were to be charged a fee for the lunch. in order',
7382:'to secure the necessary services, the army contracted with a caterer in this case the local officers club, guaranteeing a',
7383:'minimum revenue based on the anticipated number of guests. bad weather on the day of the luncheon resulted in reduced',
7384:'attendance. under the circumstances, gao approved payment of the guaranteed minimum as a program expense. gao similarly approved payment of',
7385:'a guaranteed minimum balance in b230382, dec. 22, 1989, this time involving the army’s “worldwide audio visual conference.” as in',
7386:'b208729, attendees were charged for the meal but attendance was less than expected. this case had two additional complications. first,',
7387:'the official who made the arrangements lacked the authority to do so. payment could therefore be authorized only on a',
7388:'quantum meruit basis. second, the arrangements also included a buffet, open bar, and several coffee breaks. payment for these items',
7389:'could not be authorized, even under the quantum meruit concept, since they would not have been authorized had proper procurement',
7390:'procedures been followed. b training under the government employees training act training act, an agency may pay, or reimburse an',
7391:'employee for, necessary expenses incident to an authorized training program. 5 u.s.c. § 4109. this applies whether the training is',
7392:'held through a nongovernment facility or by the federal government itself. 5 u.s.c. § 4105; b258442, apr. 19, 1995; b244473,',
7393:'jan. 13, 1992. the event, however, must comply with the training act’s definition of “training” in 5 u.s.c. § 41014.',
7394:'72 comp. gen. 178 1993. as with meetings, an agency may pay for the costs of meals and refreshments when',
7395:'they are included as an incidental and nonseparable portion of a training registration or attendance fee. 66 comp. gen. 350,',
7396:'1987; b288266, jan. 27, 2003. if the cost of the food is not included in a registration or attendance fee,',
7397:'the comptroller general has held that the government can provide meals or refreshments under this authority if the agency determines',
7398:'that providing meals or refreshments is necessary to achieve page 4115 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations:',
7399:'purpose the objectives of the training program. 48 comp. gen. 185 1968; 39 comp. gen. 119 1959; b247966, june 16,',
7400:'1993; b244473, jan. 13, 1992; b193955, sept. 14, 1979. the government may also furnish meals to nongovernment speakers as an',
7401:'expense of conducting the training. 48 comp. gen. 185. in 50 comp. gen. 610 1971, the training act was held',
7402:'to authorize the procurement of catering services for a department of agriculture training conference where government facilities were deemed inadequate',
7403:'in view of the nature of the program. the fact that an agency characterizes its meeting as “training” is not',
7404:'controlling. in other words, for purposes of authorizing the government to feed participants, something does not become training simply because',
7405:'it is called training. in b168774, sept. 2, 1970, headquarters employees of the then department of health, education, and welfare',
7406:'met with consultants in a nearby hotel at what the agency termed a “research training conference.” however, the conference consisted',
7407:'of little more than “working sessions” and included no employee training as defined in the training act. therefore, the cost',
7408:'of meals could not be paid. see also 72 comp. gen. 178 1993; 68 comp. gen. 606 1989; b247563, dec.',
7409:'11, 1996; b208527, sept. 20, 1983; b187150, oct. 14, 1976; b140912, nov. 24, 1959. in 65 comp. gen. 143 1985,',
7410:'gao held that a social security administration employee who had been invited as a guest speaker at the opening day',
7411:'luncheon of a legitimate agency training conference in the vicinity of her duty station could be reimbursed for the cost',
7412:'of the meal. the decision unfortunately confuses 5 u.s.c. §§ 4109 and 4110 by analyzing the case under section 4110',
7413:'yet concluding that reimbursement is authorized “as a necessary training expense,” which is the standard under section 4109. 3 award',
7414:'ceremonies general operating appropriations may be used to provide refreshments at award ceremonies under the government employees’ incentive awards act,',
7415:'5 u.s.c. §§ 4501–4506. 65 comp. gen. 738 1986; b271551, mar. 4, 1997. this act authorizes an agency to use',
7416:'its operating appropriations to cover the “necessary expense for the honorary recognition of” the employee or employees receiving the awards.',
7417:'5 u.s.c. § 4503. the act also directs the office of personnel management to prescribe regulations and instructions to govern',
7418:'agency awards programs. 5 u.s.c. § 4506. page 4116 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose in',
7419:'65 comp. gen. 738, the social security administration asked whether it could use operating appropriations, apart from its limited entertainment',
7420:'appropriation, to provide refreshments at its annual awards ceremony. gao observed that the incentive awards act 5 u.s.c. § 4503',
7421:'authorizes agencies to “pay a cash award to, and incur necessary expense for the honorary recognition of” employees. the decision',
7422:'reasoned that the concept of a necessary expense is, within limits, a relative one based on the relationship of the',
7423:'expenditure to the particular appropriation or program involved. thus, while the necessary relationship does not exist with respect to an',
7424:'agency’s daytoday operations, the agency would be within its legitimate discretion to determine that refreshments would materially enhance the effectiveness',
7425:'of a ceremonial function, specifically in this case an awards ceremony which is a valid component of the agency’s statutorily',
7426:'authorized awards program. the decision essentially followed b167835, nov. 18, 1969, which had concluded that the incentive awards act authorized',
7427:'the national aeronautics and space administration to fund part of the cost of a banquet at which the president was',
7428:'to present the medal of freedom to the apollo 11 astronauts. what made the fuller treatment in 65 comp. gen.',
7429:'738 necessary was that a 1974 decision, b114827, oct. 2, 1974, had found the cost of refreshments at an awards',
7430:'ceremony under the incentive awards act payable only from specific entertainment appropriations. the 1986 case partially modified b114827 to the',
7431:'extent it had held that an entertainment appropriation was the only available funding source. finally, 65 comp. gen. 738 distinguished',
7432:'43 comp. gen. 305 1963, which had disallowed the cost of refreshments at an awards ceremony for persons who were',
7433:'not federal employees and therefore not authorized under the incentive awards act nor governed by the “necessary expense” language of',
7434:'that statute. gao has emphasized that the purpose of awards ceremonies is to foster public recognition of employees’ meritorious performance',
7435:'and allow other employees to honor and congratulate their colleagues. 65 comp. gen. at 740. in b247563, dec. 11, 1996,',
7436:'the comptroller general determined that the department of veterans affairs medical center’s use of appropriated funds for a breakfast at',
7437:'which the medical center director presented awards was improper because there was no public recognition of the award recipients. the',
7438:'record indicated that 1 only those employees specifically recognized and the medical center director participated in the event and 2',
7439:'the employees’ contributions were not otherwise publicized within the medical center community. page 4117 gao04261sp appropriations law—vol. i chapter 4',
7440:'availability of appropriations: purpose in this same decision, however, the comptroller general did not find unauthorized the medical center’s use',
7441:'of its appropriation to purchase light refreshments for an annual picnic and valentine’s day dance, at which the agency presented',
7442:'performance award certificates and years of service awards. the comptroller general found that the medical center publicly recognized employees’ accomplishments',
7443:'at both events but cautioned that where an agency combines awards receptions with social events, “the expenditures should be subject',
7444:'to greater scrutiny than expenditures made in connection with more traditional awards ceremonies.” b247563, supra. recent comptroller general decisions have',
7445:'permitted appropriated funds to be used to provide meals as well as refreshments at awards ceremonies. for example, in b270327,',
7446:'mar. 12, 1997, the defense reutilization and marketing service drms was permitted to pay luncheon expenses not to exceed $20',
7447:'per employee at worldwide drms award ceremonies. the comptroller general explained that office of personnel management opm regulations purposely leave',
7448:'it up to the agencies to design their award programs, and that “we must respect and defer to opm’s regulatory',
7449:'decisions and the implicit delegation of authority to agencies to make implementing decisions visàvis their incentive awards programs so long',
7450:'as such decisions are consistent with the essential requirements of the act.” id. the comptroller general found that the $20',
7451:'per person maximum did not offend any opm regulatory guidance or express provisions of the government employees’ incentive awards act.',
7452:'id. see also b288536, nov. 19, 2001 bureau of indian affairs was permitted to pay for the cost of a',
7453:'buffet luncheon at an incentive awards ceremony. the government employees’ incentive awards act does not apply to members of the',
7454:'armed forces. however, the uniformed services have similar authority, including the identical “necessary expense” language, in 10 u.s.c. § 1124.',
7455:'therefore, 65 comp. gen. 738 applies equally to award ceremonies conducted under the authority of 10 u.s.c. § 1124. 65',
7456:'comp. gen. at 739 n.2. page 4118 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose 4 cafeterias and',
7457:'lunch facilities the government has no general responsibility to provide luncheon facilities for its employees. 10 comp. gen. 140 1930.70',
7458:'however, plans for the construction of a new government building may include provision for a lunch room or cafeteria, in',
7459:'which event the appropriation for construction of the building will be available for the lunch facility. 9 comp. gen. 217',
7460:'1929. an agency may subsidize the operation of an employees’ cafeteria if the expenditure is administratively determined to be necessary',
7461:'to the efficiency of operations and a significant factor in the hiring and retaining of employees and in promoting employee',
7462:'morale. b216943, mar. 21, 1985; b169141, nov. 17, 1970; b169141, mar. 23, 1970. see also b204214, jan. 8, 1982 temporarily',
7463:'providing paper napkins in new government cafeteria; u.s.general accounting office, benefits gsa provides by operating cafeterias in washington, d.c., federal',
7464:'buildings, lcd78316 washington, d.c.: may 5, 1978. the purchase of equipment for use in other than an established cafeteria may',
7465:'also be authorized in certain circumstances. in b173149, aug. 10, 1971, gao approved the purchase of a set of stainless',
7466:'steel cooking utensils for use by air traffic controllers to prepare food at a flight service station. there were no',
7467:'other readily accessible eating facilities and the employees were required to remain at their post of duty for a full',
7468:'8hour shift. similar cases are: b180272, july 23, 1974: purchase of a sink and refrigerator to provide lunch facilities for',
7469:'the occupational safety and health review commission where there was no government cafeteria on the premises. b210433, apr. 15, 1983:',
7470:'purchase of microwave oven by navy facility to replace nonworking stove. facility was in operation 7 days a week, some',
7471:'employees had to remain at their duty stations for 24hour shifts, and there were no readily accessible eating facilities in',
7472:'the area during nights and weekends. 70 by way of contrast, it has long been conceded that drinking water is',
7473:'a necessity. see 22 comp. dec. 31 1915; 21 comp. dec. 739 1915. however, an agency may not use appropriated',
7474:'funds for bottled drinking water for the use of employees where the public water supply of the locality is safe',
7475:'for drinking purposes. 17 comp. gen. 698 1938. page 4119 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose',
7476:'c. entertainment for government employees other than food b276601, june 26, 1997: purchase of a refrigerator for personal food items',
7477:'of central intelligence agency cia employees. cia headquarters facility was relatively distant from private eating establishments, the cia did not',
7478:'permit delivery service to enter the facility due to security concerns, and the cafeteria served only breakfast and lunch. 1',
7479:'miscellaneous cases there have been relatively few cases in this area, probably because there are few situations in which entertainment',
7480:'for government employees could conceivably be authorized. an early decision held that 10 u.s.c. § 4302, which authorizes training for',
7481:'army enlisted personnel “to increase their military efficiency and to enable them to return to civilian life better equipped for',
7482:'industrial, commercial, and business occupations,” did not include sending faculty members and students of the army music school to grand',
7483:'opera and symphony concerts. 4 comp. gen. 169 1924. another decision found it improper to hire a boat and crew',
7484:'to send federal employees stationed in the middle east on a recreational trip to the red sea. b126374, feb. 14,',
7485:'1956. a 1970 decision deserves brief mention although its application will be extremely limited. legislation in 1966 established the wolf',
7486:'trap farm park in fairfax county, virginia, as a park for the performing arts and directed the interior department to',
7487:'operate and maintain it. a certifying officer of the national park service asked whether he could certify a voucher for',
7488:'symphony, ballet, and theater tickets for wolf traps artistic director. the comptroller general held that such payments could be made',
7489:'if an appropriate park service official determined that attendance was necessary for the performance of the artistic directors official duties.',
7490:'the justification was that the artistic director attended these functions not as personal entertainment but so that he could review',
7491:'the performances to determine which cultural and theatrical events were appropriate for booking at wolf trap. b168149, feb. 3, 1970.',
7492:'as noted, this case would seem to have little precedent value except for the artistic director at wolf trap. 2',
7493:'cultural awareness programs one area that has generated several decisions, and a change in gao’s position, has been equal employment',
7494:'opportunity special emphasis or page 4120 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose cultural awareness programs. there',
7495:'are many areas in which the law undergoes refinement from time to time but remains essentially unchanged. there are other',
7496:'areas in which the law has changed to reflect changes in american society. this is one of those latter areas.',
7497:'the issue first arose in 58 comp. gen. 202 1979. in that case, the bureau of mines, interior department, in',
7498:'conjunction with the equal employment opportunity commission, sponsored a program of live entertainment for national hispanic heritage week. the program',
7499:'consisted of such items as a lecture and demonstration of south american folk music, a concert, a slide presentation, and',
7500:'an exhibit of hispanic art and ceramics. the decision concluded that, while the bureau’s spanishspeaking program was a legitimate component',
7501:'of the agency’s overall equal employment opportunity eeo program, appropriated funds could not be used to procure entertainment. this holding',
7502:'was followed in two more cases, b194433, july 18, 1979, and b199387, aug. 22, 1980. in 1981, however, gao reconsidered',
7503:'its position. the internal revenue service asked whether it could certify a voucher covering payments for a performance by an',
7504:'african dance troupe and lunches for guest speakers at a ceremony observing national black history month. the comptroller general held',
7505:'the expenditure proper in 60 comp. gen. 303 1981. the decision stated: “[w]e now take the view that we will',
7506:'consider a live artistic performance as an authorized part of an agency’s eeo effort if, as in this case, it',
7507:'is part of a formal program determined by the agency to be intended to advance eeo objectives, and consists of',
7508:'a number of different types of presentations designed to promote eeo training objectives of making the audience aware of the',
7509:'culture or ethnic history being celebrated.” id. at 306. further, the lunches for the guest speakers could be paid under',
7510:'5 u.s.c. § 5703 if they were in fact away from their homes or regular places of business. the prior',
7511:'inconsistent decisions—58 comp. gen. 202, b194433, and b199387—were overruled. it should be emphasized that the prior decisions were overruled only',
7512:'to the extent inconsistent with the new holding. two specific elements of 58 comp. gen. 202 were not involved in',
7513:'the 1981 decision and remain valid. first, use of appropriated funds to serve meals or refreshments remains page 4121 gao04261sp',
7514:'appropriations law—vol. i chapter 4 availability of appropriations: purpose improper except under specific statutory authority. 58 comp. gen. at 206.71',
7515:'second, 58 comp. gen. 202 found the purchase of commercial insurance on art objects improper. id. at 207. this portion',
7516:'also remains valid. the comptroller general also determined that transportation costs of an employee participating in a cultural program are',
7517:'not authorized unless the employee is participating in the program as a performer or making some other type of direct',
7518:'contribution to the eeo event. b243862, july 28, 1992. the decision at 60 comp. gen. 303 was expanded in b199387,',
7519:'mar. 23, 1982, to include small “samples” of ethnic foods prepared and served during a formal ethnic awareness program as',
7520:'part of the agency’s equal employment opportunity program. in the particular program being considered, the attendees were to pay for',
7521:'their own lunches, with the ethnic food samples of minimal proportion provided as a separate event. thus, the samples could',
7522:'be distinguished from meals or refreshments, which remain unauthorized. the decision did not specify how many “samples” an individual might',
7523:'consume in order to develop a fuller appreciation. in 1999, the comptroller general clarified that 60 comp. gen. 303 does',
7524:'not require that a program or event have specific advance written approval in a formal agency issuance to be considered',
7525:'a formal equal employment opportunity program for which funds are available. “what is required is that the agency through an',
7526:'authorized official determines that the planned performance advances eeo objectives.” b278805, july 21, 1999. although 60 comp. gen. 303 was',
7527:'not cast in precisely these terms, it is another example of the “theory of relativity” in purpose availability to which',
7528:'we have alluded in various places in this chapter. equality in all aspects of federal employment is now a legal',
7529:'mandate. an agency is certainly within its discretion to determine that fostering racial and ethnic awareness is a valid—perhaps indispensable—means',
7530:'of advancing this objective. this being the case, it is not at all farfetched to conclude that certain expenditures that',
7531:'might be wholly inappropriate in other contexts could reasonably relate to this purpose. thus, hiring an african dance troupe could',
7532:'not be justified to further an objective of, for example, conducting a financial audit or constructing a building or procuring',
7533:'a tank, 71 compare b208729, may 24, 1983, in which an army unit sponsored a catered luncheon to commemorate dr.',
7534:'martin luther king, jr., but—properly—charged attendees for the meal. page 4122 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations:',
7535:'purpose but the relationship changes when the objective is promoting cultural awareness. once the concept of the preceding paragraph is',
7536:'understood, it should be apparent why, in 64 comp. gen. 802 1985, gao distinguished the cultural awareness cases and concluded',
7537:'that the army could not use appropriated funds to provide free meals for handicapped employees attending a luncheon in honor',
7538:'of national employ the handicapped week. this is not to say that an agency’s eeo program should not embrace the',
7539:'handicapped—on the contrary, it can, should, and is required to—but merely that “[u]nlike ethnic and cultural minorities, handicapped persons do',
7540:'not possess a common cultural heritage” within the intended scope of the cultural awareness cases. id. at 804 quoting from',
7541:'the request for decision. d. entertainment of nongovernment personnel just as the entertainment of government personnel is generally unauthorized, the',
7542:'entertainment of nongovernment personnel is equally impermissible. the basic rule is the same regardless of who is being fed or',
7543:'entertained: appropriated funds are not available for entertainment, including free food, except under specific statutory authority. two of the most',
7544:'frequently cited decisions for this proposition are 5 comp. gen. 455 1925 and 26 comp. gen. 281 1946. in 5',
7545:'comp. gen. 455, expenditures by two army officers for entertaining officials of foreign governments while making arrangements for an aroundtheworld',
7546:'flight were disallowed. in 26 comp. gen. 281, appropriations were held unavailable for dinners and luncheons for “distinguished guests” given',
7547:'by a commissioner of the philippine war damage commission. other early decisions on point are: 5 comp. gen. 1018 1926;',
7548:'b85555, june 6, 1949; and a10221, oct. 8, 1925. a limited exception was recognized in b22307, dec. 23, 1941, to',
7549:'permit entertainment of officials of foreign governments incident to the gathering of intelligence for national security. as with the cases',
7550:'dealing with government employees, a large proportion of the decisions tend to involve food. in 43 comp. gen. 305 1963,',
7551:'funds were not available to furnish food or refreshments at “recognition ceremonies” for volunteers at veterans administration field stations. the',
7552:'ceremonies had been designed as an inducement to the volunteers to continue rendering service. naturally, the situation would be permissible',
7553:'under specific statutory authority. b152331, nov. 19, 1975. other examples are 26 comp. gen. 281, cited above; b236763, jan. 10,',
7554:'1990, disallowing costs for refreshments for college students at recruiting functions, unless the costs were included in a lumpsum bill',
7555:'with other room facility charges; page 4123 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose and b138081, jan.',
7556:'13, 1959, disallowing the cost of a breakfast meeting with canadian officials called at the initiative of the chairman of',
7557:'the securities and exchange commission. several more recent decisions illustrate the continued application of the rule and some of the',
7558:'exceptions permitted by statute. in 68 comp. gen. 226 1989, the department of housing and urban development hud used its',
7559:'research and technology appropriations for entertainment expenses incident to a trade show it sponsored in the soviet union. since hud',
7560:'had no authority to sponsor the show, the related expenditures were improper. the decision further pointed out that, even if',
7561:'the trade show itself had been authorized, the research and technology appropriations still would not have been available for entertainment,',
7562:'although hud could then have used its “official reception and representation” funds. see also 65 comp. gen. 16 1985 free',
7563:'inflight meals during weather research flight unauthorized for nongovernment personnel. in 57 comp. gen. 806 1978, the comptroller general held',
7564:'that appropriations available to the judiciary for jury expenses could not be used to buy coffee and refreshments for jurors',
7565:'during recesses in trial proceedings. the situation was analogized to the cases prohibiting the purchase of food from appropriated funds',
7566:'for employees working under unusual conditions. the decision noted that statutory authority existed to pay actual subsistence expenses for jurors',
7567:'under sequestration, not an issue in the case at hand. the relevant appropriation language was subsequently amended to provide for',
7568:'refreshments, and the authority was made permanent in 1989.72 in a 1979 decision, appropriations of the equal employment opportunity commission',
7569:'were found not available to host a reception for hispanic leaders in conjunction with a planning conference. b193661, jan. 19,',
7570:'1979. the case fell squarely within the general rule. so did b205292, june 2, 1982, involving a fourth of july',
7571:'fireworks display by a navy station, justified as a community relations measure. while good community relations may be desirable for',
7572:'all government agencies, fireworks are not necessary to the operation and maintenance of the navy. 72 departments of commerce, justice,',
7573:'and state, the judiciary, and related agencies appropriations act, 1990, pub. l. no. 101162, 103 stat. 988, 1012 nov. 21,',
7574:'1989. page 4124 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose the propriety of using appropriated funds to',
7575:'furnish luncheons to public school officials in conjunction with marine corps recruiting programs was considered in b162642, aug. 9, 1976.',
7576:'a statute authorized reimbursement of necessary expenses incurred by recruiters, and applicable regulations permitted the reimbursement to include small amounts',
7577:'spent for occasional lunches, snacks, or nonalcoholic beverages. gao, however, did not consider a planned luncheon involving a formal presentation',
7578:'with a guest speaker as within the intended scope of the statute or regulations. since the statute and regulations were',
7579:'broadly worded, payment in that case was authorized. the decision cautioned, however, against incurring similar expenses in the future unless',
7580:'the regulations were first revised to provide adequate guidelines and limitations. the national park service has authority to provide for',
7581:'“interpretive demonstrations” at park service sites. 16 u.s.c. § 1a2g. gao reviewed this authority and its legislative history in 68',
7582:'comp. gen. 544 1989, concluding that it could properly include some level of entertainment, as long as it was sufficiently',
7583:'related to the significance of the particular site. thus, there was no objection to the 1988 railroaders festival at the',
7584:'golden spike national historic site, which included musical entertainment by a band specializing in railroad and nineteenth century western american',
7585:'music. golden spike is the site of the completion of the first u.s. transcontinental railroad in 1869. similarly within this',
7586:'authority was the decoration of a historic ranch house at the grantkohrs ranch national historic site to “interpret” how the',
7587:'ranch celebrated christmas during the frontier era. b226781, jan. 11, 1988. however, an “open house” with refreshments and a visit',
7588:'by santa claus had “too indirect and conjectural a bearing” on the park services mission and was therefore unauthorized. id.',
7589:'gao considered whether the national science foundation nsf could use appropriated funds to pay for dinnerrelated expenses for a nonfederal',
7590:'award recipient and her spouse pursuant to a statutorily established award called the alan t. waterman award in b235163.11, feb.',
7591:'13, 1996. gao concluded that nsf could use appropriated funds for the dinnerrelated expenses because the dinner at which the',
7592:'awards were presented was the necessary vehicle to accomplish the statutory objectives of the waterman award. no discussion of entertainment',
7593:'would be complete without b182357, dec. 9, 1975. the foreign assistance act of 1961, as amended, 22 u.s.c. §§ 2151',
7594:'et seq. 1970, authorized funds for an informational program to give foreign military trainees a greater exposure to american culture.',
7595:'to page 4125 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose implement the program, the department of defense',
7596:'set up a program whereby officers would serve as escorts for foreign military trainees to impart to them an active',
7597:'appreciation of american values and ideals. the case involved a voucher submitted by a civilian employee of the navy for',
7598:'expenses incurred as escort officer for a group of twelve senior foreign naval officers being trained in the united states.',
7599:'the voucher included visits to a variety of restaurants, night clubs, and bars. one of the items was a visit',
7600:'to the boston playboy club. the claimant justified the visit as “symbolic of the united states” and “one of the',
7601:'most enjoyable experiences” the trainees had during their stay in america. apparently to get more symbolism, the party returned for',
7602:'a second visit. in reviewing the case, the comptroller general noted that, under the statutory program, the funds could have',
7603:'been given directly to the trainees to be spent as they desired, and the agency would therefore have considerable discretion',
7604:'in spending the money for the trainees. in addition, the regulations provided “no guidance whatsoever” on the limits of the',
7605:'program. somewhat reluctantly, the comptroller general was forced to conclude that “the lack of adequate guidance to the escort officer',
7606:'leaves us no alternative but to allow him credit for the expenses incurred.” e. recreational and welfare facilities for government',
7607:'personnel 1 the rules: older cases and modern trends the basic rule for recreational facilities—which, as we shall see, has',
7608:'become more flexible—was established in early decisions: appropriations are not available unless the expenditure is authorized by express statutory provision',
7609:'or by necessary implication. thus, in 18 comp. gen. 147 1938, appropriations for a river and harbor project on midway',
7610:'island were held not available to provide recreational facilities such as athletic facilities and motion pictures for the working force.',
7611:'similarly, in 27 comp. gen. 679 1948, the comptroller general advised that navy appropriations were not available to hire fulltime',
7612:'or parttime employees to develop and supervise recreational programs for civilian employees of the navy. the reason in both cases',
7613:'was that the expenditure would have at best only an indirect bearing on the purposes for which the appropriations were',
7614:'made. other early decisions applying the general rule are b49169, may 5, 1945 rental of motion picture by bonneville power',
7615:'administration; b37344, oct. 14, 1943 footballs and basketballs for employees in forest service camps; and a55035, may 19, 1934 billiard',
7616:'tables for tennessee valley authority employees. in b49169, the comptroller general pointed out that the administrators authority to make such',
7617:'expenditures as he “may find necessary” does not mean anything he may approve, regardless of its page 4126 gao04261sp appropriations',
7618:'law—vol. i chapter 4 availability of appropriations: purpose nature, but the expenditures must bear a direct relationship to the purposes',
7619:'to be accomplished under the particular legislation. it follows that, as a general proposition, appropriated funds may not be used',
7620:'to underwrite travel to or participation in sports or recreational events since this is not the performance of public business.',
7621:'42 comp. gen. 233 1962. for example, in 73 comp. gen. 169 1994, appropriated funds were not available to the',
7622:'department of energy to pay the registration fees of employees participating in competitive fitness promotion, team activities, and sporting events.',
7623:'gao concluded that these activities were not an essential part of a statutorily authorized physical fitness program and therefore were',
7624:'“generally personal, rather than official,” with costs to be “borne by the participating employees, not by the taxpayers.” id. at',
7625:'170. see also b247563.3, apr. 5, 1996 department of veterans affairs appropriations not available for registration fees for athletic contest',
7626:'“virtually indistinguishable” from contest in 73 comp. gen. 169. similarly, in b262008, oct. 23, 1996, gao found that the army',
7627:'corps of engineers could not use appropriated funds to pay an entrance fee for corps employees in a “corporate cup',
7628:'run” sponsored by the american lung association. the fact that the employees were to participate as an agencysponsored team, rather',
7629:'than as individuals, did not change the result. gao cited the “absence of any justification to show that participation of',
7630:'employees in the run—a competitive athletic event—in any way supports the mission of the corps.” of course, the particular circumstances',
7631:'may warrant an exception. thus, appropriations for “student athletic and related activities” at the federal law enforcement training center may',
7632:'be used to provide limited offsite busing to shopping centers, recreational facilities, and places of worship in the nearest town',
7633:'several miles away. the students—government employees in travel status—must live at the center for several weeks, most do not have',
7634:'cars, and there is no public transportation to the nearest town. b214638, aug. 13, 1984. one area in which recreational',
7635:'and welfare expenditures have been permitted with some regularity is where employees are located at a remote site, where such',
7636:'facilities would not otherwise be available. expenditures were permitted in the following cases: purchase of ping pong paddles and balls',
7637:'by the corps of engineers to equip a recreation room on a seagoing dredge. b61076, feb. 25, 1947. page 4127',
7638:'gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose transportation of musical instruments, billiard and ping pong tables, and',
7639:'baseball equipment, obtained from surplus military stock, to isolated weather bureau installations in the arctic. b144237, nov. 7, 1960. purchase',
7640:'of playground equipment for children of employees living in a governmentowned housing facility in connection with the operation of a',
7641:'dam on the rio grande river in an isolated area. 41 comp. gen. 264 1961. the agency in that case',
7642:'had statutory authority to provide recreational facilities for employees and the question was whether that authority extended to employees families',
7643:'as well. it did. use of an appropriation of the federal aviation administration faa for construction of “quarters and related',
7644:'accommodations” to provide tennis courts and playground facilities in an isolated sector of the panama canal zone. b173009, july 20,',
7645:'1971. purchase of a television set and antenna for use by the crew on a ship owned by the environmental',
7646:'protection agency. the ship was used to gather and evaluate water samples from the great lakes, and cruises lasted for',
7647:'up to 15 days. the alternative would have been to extend the length of the cruises to permit more frequent',
7648:'docking. 54 comp. gen. 1075 1975. provision of television services for national weather service employees on a remote island in',
7649:'the bering sea. the agency was authorized to furnish recreational facilities by the fur seal act of 1966, but the',
7650:'statute also required that the employees be charged a reasonable fee. b186798, sept. 16, 1976. use of government vehicles to',
7651:'transport faa employees on temporary duty at a remote duty location permissible under applicable federal travel regulations, subject to “reasonable',
7652:'limitations and safeguards.” b254296, nov. 23, 1993. the employees were on temporary duty assignments at a remote alaskan station. in',
7653:'recent decades, the role of certain “employee welfare” activities in employee morale and productivity has been increasingly recognized. see 71',
7654:'comp. gen. 527, 529 1992 gao has “accepted the retention of employees and promotion of employee morale, generally, as a',
7655:'justification for paying some expenses that, in many circumstances, would be viewed as personal in nature . . .”. in',
7656:'some instances, the recognition has been page 4128 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose accompanied by',
7657:'statutory authority. for example, the defense department has specific authority to use appropriated funds for welfare and recreation. this authority',
7658:'originated in general provisions contained in annual appropriation acts, was made permanent in 1983,73 and is now codified at 10',
7659:'u.s.c. § 2241. see also 10 u.s.c. § 2494 department of defense funds available for morale, welfare, and recreation programs',
7660:'under certain circumstances “may be treated as nonappropriated funds and expended in accordance with laws applicable to the expenditure of',
7661:'nonappropriated funds.”.74 on the other hand, there are limits to congressional support for recreational funding. congress has found it necessary',
7662:'to enact a specific statutory prohibition on the use of defense appropriated funds to “equip, operate, or maintain” a golf',
7663:'course that is neither outside the united states nor at a “remote and isolated location” within the united states. 10',
7664:'u.s.c. § 2246. note that this statute does not restrict the use of nonappropriated funds for golf courses. gao interpreted',
7665:'section 2246 in b277905, mar. 17, 1998, involving installation of irrigation pipelines for a golf course at fort sam houston,',
7666:'texas. gao concluded that the explicit statutory prohibition of 10 u.s.c. § 2246 was not overcome by other statutes encouraging',
7667:'agency cooperation with state and local water conservation efforts, finding that “a statute that is clear and unambiguous on its',
7668:'face should be construed to mean what it says.” the civilian agencies generally do not have statutory authority comparable to',
7669:'that of the department of defense, and decisions must be made, for the most part, under 31 u.s.c. § 1301a',
7670:'and the necessary expense doctrine. even here, however, the rather strict rule of the early decisions has undergone some liberalization,',
7671:'even in nonremote locations. while the general rule expressed in 18 comp. gen. 147 and 27 comp. gen. 679 remains',
7672:'as a bar to indiscriminate expenditures, it may now be said that an agency has reasonable discretion to spend its',
7673:'money for employee welfare purposes if the expenditure can be said to enhance employee morale and to be a significant',
7674:'factor in hiring and retention. the test remains one of necessity, but it is evaluated in terms of the agency’s',
7675:'legitimate interest in the welfare, morale, and productivity of its employees. determinations must be made on a casebycase basis. 73',
7676:'department of defense appropriation act, 1984, pub. l. no. 98212, § 735, 97 stat. 1421, 1444 dec. 8, 1983. 74',
7677:'see chapter 14, section c, “nonappropriated fund instrumentalities” volume iii of the third edition of principles of federal appropriations law.',
7678:'page 4129 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose a good illustration of this evolution is the',
7679:'treatment of programmed “incentive music” sometimes called “muzak”75 or, by its detractors, “elevator music”. when gao first visited the issue,',
7680:'it concluded that an agency could not, within its legitimate range of discretion, find this to be a necessary expense.',
7681:'b86148, nov. 8, 1950. the issue arose again 20 years later when the bureau of the public debt, treasury department,',
7682:'asked if it could use its salaries and expenses appropriation to provide programmed incentive music for its employees. the system',
7683:'had been installed by a previous tenant and the speakers were located in central work areas rather than in private',
7684:'offices. the bureau pointed out that private concerns had found that such music enhanced employee morale by “creating a pleasantly',
7685:'stimulating and efficient atmosphere during the workday” and helped to minimize employee boredom. gao had rejected similar arguments in the',
7686:'1950 decision. this time, gao concurred, accepting the bureau’s justification that the expenditure would improve employee morale and increase productivity.',
7687:'51 comp. gen. 797 1972, overruling b86148. in terms of the legal principle involved, whether gao agreed with the justification',
7688:'or not was irrelevant; all that matters is that the determination is now viewed as a proper exercise of agency',
7689:'discretion. another example of a permissible expenditure in this area is the subsidization of employee cafeterias, previously discussed. still another',
7690:'is parking facilities, discussed later in the section on personal expenses. two items covered in the section on health and',
7691:'medical care—physical fitness activities and smoking cessation programs—further illustrate evolving trends in the area of employee welfare and morale. a',
7692:'final example is our next topic, child care. 2 child care76 like the cultural awareness programs previously discussed, child care',
7693:'is another example of evolution in the law to accommodate a changing society. prior to 1985, there was no express',
7694:'statutory authority for using 75 the name is derived from the muzak company, one of the providers. 76 the statutes',
7695:'and cases discussed in this section concern the use of appropriated funds for federal child care facilities. they do not',
7696:'concern child care expenses incurred by federal employees as travel costs. see, e.g., b246829, may 18, 1982 “our decisions have',
7697:'clearly held that fees for child care are not reimbursable expenses in connection with an employees travel or relocation since',
7698:'neither the governing statutes nor the [federal travel regulations] authorize such an entitlement.”. page 4130 gao04261sp appropriations law—vol. i chapter',
7699:'4 availability of appropriations: purpose appropriated funds to support child care services in federal buildings for federal employees. times have',
7700:'changed and the federal government, as an employer, is not immune from the changes. the number of singleparent families in',
7701:'america has increased dramatically, as has the number of twoparent families in which both parents work, out of either economic',
7702:'necessity, personal choice, or some combination of factors. the inevitable result is a heightened awareness of the need for child',
7703:'care.77 gao’s first written discussion of the authority to spend appropriated funds to provide child care services for government employees,',
7704:'b39772o.m., july 30, 1976, was not a decision to another agency but an internal memorandum from the general counsel analyzing',
7705:'gao’s own authority. gao was considering establishing a day care center in its own building, to be funded and operated',
7706:'by employees. gao’s administrative officials wanted to know what kinds of support the agency could or could not provide without',
7707:'statutory authority, which, at the time, did not exist. the general counsel analyzed the questions from the perspective of purpose',
7708:'availability, and concluded that the comptroller general could allocate space in the gao building for a day care center, could',
7709:'use gao’s appropriations to renovate the space and buy equipment, and could assume part or all of the rent payable',
7710:'to the general services administration for the space. however, before any of these things could be done, the comptroller general,',
7711:'as the agency head, would first have to determine that the expenditure would materially contribute to recruiting or retaining staff',
7712:'or maintaining employee morale and hence efficiency and productivity. because of the lack of statutory authority, the memorandum cautioned that',
7713:'gao should disclose any substantial capital expenditures for renovation in its budget presentation and to the appropriations committees if it',
7714:'chose to take such action. see also b205342, dec. 8, 1981 nondecision letter, reiterating the general conclusion of the 1976',
7715:'memorandum. as it turned 77 some gao reports on child care in the federal sector are: u.s. general accounting office,',
7716:'child care: employer assistance for private sector and federal employees, gao/ggd8638 washington, d.c.: feb. 11, 1986; military child care programs:',
7717:'progress made, more needed, gao/fpcd8230 washington, d.c.: june 1, 1982; and child care: availability for civilian dependents at selected dod',
7718:'installations, gao/hrd88115 washington, d.c.: sept. 15, 1988. page 4131 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose out,',
7719:'gao did not establish a day care center until after the enactment of 40 u.s.c. § 590 formerly 40 u.s.c.',
7720:'§ 490b, discussed below. prior to the enactment of more general legislation in 1985, some agencies had authority to provide',
7721:'day care facilities under agencyspecific legislation. for example, legislation authorized the then department of health, education, and welfare to donate',
7722:'space for day care centers.78 in 57 comp. gen. 357 1978, the comptroller general held that the use of the',
7723:'term “donate” gave the agency discretion to provide the space without charge, or to lease space in other buildings for',
7724:'that purpose if suitable space was not available in buildings the agency already occupied. also, as we have seen, the',
7725:'defense department has specific authority to use operation and maintenance appropriations for welfare expenditures. in 1985, congress enacted former 40',
7726:'u.s.c. § 490b, now recodified at 40 u.s.c. § 590, which authorizes, but does not require, federal agencies to provide',
7727:'space and services for child care centers. the term “services” is defined as including “lighting, heating, cooling, electricity, office furniture,',
7728:'office machines and equipment, classroom furnishings and equipment, kitchen appliances, playground equipment, telephone service including installation of lines and equipment',
7729:'. . ., and security systems ….” id. § 590c1.79 the space and services may be provided with or without',
7730:'charge. the comptroller general’s first construction of this statute came in response to an arbitration panel award that included a',
7731:'union day care proposal for the children of civilian employees. council 214, american federation of government employees, aflcio, 15 f.l.r.a.',
7732:'151 1984, aff’d sub nom. department of air force v. federal labor relations authority, 775 f.2d 727 6th cir. 1985.',
7733:'the federal labor relations authority directed the air force to incorporate the award in its collective bargaining agreement,80 and the',
7734:'air force in turn asked gao whether, under former 40 u.s.c. § 490b, it had authority to use its appropriations',
7735:'to 78 education amendments of 1976, pub. l. no. 94482, § 524, 90 stat. 2081, 2240 oct. 12, 1976, codified',
7736:'at 20 u.s.c. § 2564. 79 the definition was patterned generally after the statute authorizing agencies to provide space to',
7737:'federal credit unions, 12 u.s.c. § 1770, discussed in 66 comp. gen. 356 1987. 80 the fact that day care',
7738:'is involved cannot be determined from either opinion, both of which discuss procedural issues. page 4132 gao04261sp appropriations law—vol. i',
7739:'chapter 4 availability of appropriations: purpose implement the award. the resulting decision, 67 comp. gen. 443 1988, reached the following',
7740:'conclusions: the air force can, either with or without charge, allot space in government buildings under its control for child',
7741:'care facilities for civilian employees, and can provide the services outlined in the statute. the air force can use its',
7742:'appropriations to renovate, modify, or expand the space allotted to make it suitable for use as a child care facility.',
7743:'the air force can expand existing child care facilities for military personnel to accommodate the children of civilian employees. the',
7744:'decision also concluded that any reimbursements received from a child care center which, as noted, are optional must be deposited',
7745:'in the treasury as miscellaneous receipts. in 70 comp. gen. 210 1991, gao concluded that former 40 u.s.c. § 490b',
7746:'did not preclude the general services administration from leasing space or constructing buildings for child care facilities if there is',
7747:'insufficient space available in existing federal buildings. the authority in section 490b to use existing space was not exclusive. the',
7748:'1988 decision to the air force, 67 comp. gen. 443, had expressed a contrary view and was overruled to that',
7749:'extent. in 73 comp. gen. 336 1994, gao approved the use of appropriated funds by the forest service to pay',
7750:'a consultant for services rendered to a forest servicesupported child care center on forest service premises. citing former section 490b',
7751:'and a recurring appropriation act provision that permitted payment of expenses predecessor to 40 u.s.c. § 590d2, discussed below, gao',
7752:'concluded that forest service funds were available to pay “startup/support costs” for the day care facility, including consultant services. in',
7753:'1998, congress made permanent a recurring appropriation act provision authorizing reimbursement of “travel, transportation, and subsistence expenses incurred for training',
7754:'classes, conferences, or other meetings” in connection with the provision of child care services. pub. l. no. 105277, div. a,',
7755:'§ 101h title vi, § 603, 112 stat. 2681480, 2681513 oct. 21, 1998. this statute is now codified at 40',
7756:'u.s.c. § 590d2. similarly, in 2001, congress made permanent another recurring provision that made appropriated funds available “to improve the',
7757:'affordability of child care for lower income federal employees.” pub. l. no. 10767, § 630, page 4133 gao04261sp appropriations law—vol.',
7758:'i chapter 4 availability of appropriations: purpose 115 stat. 514, 552–53 nov. 12, 2001. this statute is now codified at',
7759:'40 u.s.c. § 590g. office of personnel management regulations governing agency use of appropriated funds for child care costs for',
7760:'lower income employees are at 5 c.f.r. pt. 792, subpt. b, 68 fed. reg. 14127, 14129 mar. 24, 2003 interim',
7761:'rule. in late 1989, congress enacted new child care legislation for the armed forces, including the authority to use fees',
7762:'collected from parents. military child care act of 1989, title xv of the national defense authorization act for fiscal years',
7763:'1990 and 1991, pub. l. no. 101189, 103 stat. 1352, 1589 nov. 29, 1989, formerly codified at 10 u.s.c. §',
7764:'103 note. this provision was revised and recodified by pub. l. no. 104106, § 568, 110 stat. 186, 329– 336',
7765:'feb. 10, 1996, which added new legislation governing department of defense child care programs. 10 u.s.c. § 1791 et seq.81',
7766:'section 1791 expresses the policy of congress that: “[t]he amount of appropriated funds available during a fiscal year for operating',
7767:'expenses for military child development centers and programs shall be not less than the amount of child care fee receipts',
7768:'that are estimated to be received by the department of defense during that fiscal year.”82 in 71 comp. gen. 527',
7769:'1992, gao addressed the analogous issue of the use of appropriated funds to provide “eldercare” facilities for adult relatives of',
7770:'federal employees, as well as related counseling services. in response to a request for a decision from the internal revenue',
7771:'service irs, gao concluded that eldercare was not a necessary expense for which irs’s appropriations were available. gao pointed out',
7772:'that congress had provided specific authority for child care in former 40 u.s.c. § 490b and, since eldercare was not',
7773:'a “typical benefit offered the american workforce,” similar benefits were available to federal workers only pursuant to specific legislation. it',
7774:'was “for the congress to decide whether agency appropriations [could] be used to support eldercare centers.” irs’s appropriations, therefore, were',
7775:'not available for costs associated with 81 implementation of the dod program is discussed in u.s. general accounting office, child',
7776:'care: how do military and civilian center costs compare? gao/hehs007 washington, d.c.: oct. 14, 1999. 82 see also child development',
7777:'programs, dod instruction 6060.2 jan. 19, 1993; schoolage care program, dod instruction 6060.3 dec. 19, 1996. page 4134 gao04261sp appropriations',
7778:'law—vol. i chapter 4 availability of appropriations: purpose f. reception and representation funds eldercare facilities. irs’s appropriated funds were available,',
7779:'however, “to implement a resource and referral service on eldercare issues” under the authority of 5 u.s.c. § 7901, which',
7780:'authorizes “preventive programs related to health.” id. at 530. implicit in all of our discussion of entertainment is the point',
7781:'that otherwise improper expenditures may be authorized under specific statutory authority. congress has long recognized that many agencies have a',
7782:'legitimate need for items that otherwise would be prohibited as entertainment, and has responded by making limited amounts available for',
7783:'official entertainment to those agencies that can justify the need. entertainment appropriations originated from the need to permit officials of',
7784:'agencies whose activities involve substantial contact with foreign officials to reciprocate for courtesies extended to them by foreign officials. for',
7785:'example, the state department would find it difficult to accomplish its mission if it could not spend any money entertaining',
7786:'foreign officials. in fact, some of the early entertainment appropriations were limited to entertaining nonu.s. citizens, and some could only',
7787:'be spent overseas. an example of the latter type is discussed in b46169, dec. 21, 1944. restrictions of this nature',
7788:'have become increasingly uncommon. entertainment appropriations may take various forms. some agencies have their own wellestablished structures that may include',
7789:'permanent legislation. for example, the state department has permanent authorization to pay for official entertainment. 22 u.s.c. § 4085. see',
7790:'also 22 u.s.c. § 2671, which authorizes expenditures for “unforeseen emergencies” that may include official entertainment in certain contexts. the',
7791:'authority of 22 u.s.c. § 4085 is implemented by means of annual appropriations under the heading “representation allowances.”83 state department',
7792:'representation allowances have been found available for rental of formal evening wear by embassy officials accompanying the ambassador to the',
7793:'united kingdom in presenting his credentials to the queen, 68 comp. gen. 638 1989; hiring extra waiters and busboys to',
7794:'serve at official functions at foreign posts, 64 comp. gen. 138 1984; meals for certain embassy officials at rotary club',
7795:'meetings in tanzania, if approved by the local chief of mission, b232165, june 14, 1989; and reimbursement of ambassador and',
7796:'deputy chief of mission for cost of renting formal morning dress required by protocol for official occasions, b256936, 83 e.g.,',
7797:'pub. l. no. 101162, 103 stat. 988, 1007 nov. 21, 1989 fiscal year 1990; pub. l. no. 1087, div. b,',
7798:'title iv, 117 stat. 11, 87 feb. 20, 2003 fiscal year 2003. page 4135 gao04261sp appropriations law—vol. i chapter 4',
7799:'availability of appropriations: purpose june 22, 1995. a fact sheet reviewing expenditures at selected overseas posts is u.s. general accounting',
7800:'office, representational funds: state department expenditures at selected posts, gao/nsiad8773fs washington, d.c.: feb. 3, 1987. the defense department also has',
7801:'its own structure. under 10 u.s.c. § 127, the secretary of defense, or of a military department, within the limitations',
7802:'of appropriations made for that purpose, may use funds to “provide for any emergency or extraordinary expense which cannot be',
7803:'anticipated or classified.” see official representation funds, dod directive 7250.13 sept. 10, 2002. when so provided in an appropriation, the',
7804:'official may spend the funds “for any purpose he determines to be proper.” 10 u.s.c. § 127a. see 72 comp.',
7805:'gen. 279 1993 certifying officer processing voucher under 10 u.s.c. § 127 is responsible only for errors made in his',
7806:'own processing of the voucher, and not for the defense attache’s prior certification as to the propriety of the payment.',
7807:'annual operation and maintenance appropriations include amounts for “emergencies and extraordinary expenses.”84 although the title is not particularly revealing, it',
7808:'has long been understood that official representation expenses are charged to this account. see u.s. general accounting office, internal controls:',
7809:'defenses use of emergency and extraordinary funds, gao/afmd8644 washington, d.c.: june 4, 1986; dod use of official representation funds to',
7810:'entertain foreign dignitaries, gao/id837 washington, d.c.: dec. 29, 1982; 69 comp. gen. 242 1990 reception for newly assigned commander at',
7811:'u.s. army school of the americas. with these two major exceptions, most agencies follow a similar pattern and receive their',
7812:'entertainment funds, if they receive them at all, simply as part of their annual appropriations. the appropriation may specify that',
7813:'it will be available for “entertainment.” see, e.g., b20085, sept. 10, 1941. far more commonly, however, the term used in',
7814:'the appropriation is “official reception and representation r&r.” this has come to be the technical “appropriations language” for entertainment. while',
7815:'we cannot guarantee that one does not exist somewhere, we have not found a congressional definition of the term “official',
7816:'r&r.” absent a definition, we found it instructive to review agency justifications to see 84 e.g., department of defense appropriations',
7817:'act 2003, pub. l. no. 107248, 116 stat. 1519, 1521 army, 1522 navy, air force, defensewide, 1535 inspector general oct.',
7818:'23, 2002. page 4136 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose what sort of authority congress thought',
7819:'it was conferring. the term seems to have originated—or at least became more widespread—in the early 1960s. we identified the',
7820:'first appearance of the term for a number of agencies, and selected two, the departments of agriculture and interior, as',
7821:'illustrative. both agencies first received “official r&r” funds in their appropriations for fiscal year 1963.85 the agriculture department explained that',
7822:'the secretary frequently finds it necessary to provide a luncheon or similar courtesy to various individuals and small groups in',
7823:'the conduct of official business, to promote effective working relationships with farm, trade, industry, and other groups that are directly',
7824:'related to accomplishing the agriculture departments work. such official courtesies benefit the government, and the secretary and under secretary of',
7825:'agriculture should not be required to bear these expenses from their own personal funds as was then the case. in',
7826:'conclusion, the justification observed that “[i]t is unseemly that the hospitality should always be left to the visitor.” 86 similarly,',
7827:'the interior department explained that its request for “not to exceed $2,000 for official reception and representation expenses” was intended',
7828:'to provide authority to use appropriated funds for expenses incurred by the interior secretary “in fulfilling the courtesy and social',
7829:'responsibilities directly associated with his official duties,” in situations much like those the agriculture department had noted. such official expenses,',
7830:'the justification asserted, “rightly should be borne by the government rather than be financed from personal funds.”87 one point that',
7831:'is clear from these excerpts is that an r&r appropriation, whatever its origins may have been, is not limited to',
7832:'the entertainment of foreign nationals, unless of course the appropriation language so provides. the experience of the former department of',
7833:'health, education, and welfare hew provides further evidence that, absent some indication to 85 department of agriculture and related agencies',
7834:'appropriation act, 1963, pub. l. no. 87879, 76 stat. 1203, 1212 oct. 24, 1962; department of the interior and related',
7835:'agencies appropriation act, 1963, pub. l. no. 87578, 76 stat. 335, 345 aug. 9, 1962. 86 department of agriculture appropriations',
7836:'for 1963: hearings before the subcomm. on department of agriculture and related agencies appropriations of the house comm. on appropriations,',
7837:'87th cong., 2d sess. pt. 4, at 2090–91 1962. 87 interior department and related agencies appropriations for 1963: hearings on',
7838:'h.r. 10802 before a subcomm. of the senate comm. on appropriations, 87th cong., 2d sess. 550 1962. page 4137 gao04261sp',
7839:'appropriations law—vol. i chapter 4 availability of appropriations: purpose the contrary, congress does not intend that an “official r&r” appropriation',
7840:'be limited to entertaining foreign nationals. the secretary of hew first received an entertainment appropriation in hew’s fiscal year 1960',
7841:'appropriation act, but it was limited to certain foreign visitors.88 the language was changed to “official reception and representation” in',
7842:'hew’s fiscal year 1964 appropriation.89 the conference report on the 1964 appropriation explained that the change was intended to expand',
7843:'the scope of the appropriation to include u.s. citizens as well as foreign visitors.90 it is clear that r&r appropriations',
7844:'have traditionally been sought, justified, and granted in the context of an agency’s need to interact with various nongovernment individuals',
7845:'or organizations. precisely who these individuals or organizations might be will vary with the agency. of course, the fact that',
7846:'the thrust of the appropriation is the entertainment of nongovernment persons does not mean that government persons are precluded. for',
7847:'example, it has long been recognized that persons from other agencies and by necessary implication members of the host agency',
7848:'as well may be included incident to an authorized entertainment function for nongovernment persons. e.g., b84184, mar. 17, 1949. an',
7849:'agency has wide discretion in the use of its r&r appropriation. 61 comp. gen. 260, 266 1982; b212634, oct. 12,',
7850:'1983. as a general proposition, “official agency events, typically characterized by a mixed ceremonial, social and/or business purpose, and hosted',
7851:'in a formal sense by high level agency officials” and relating to a function of the agency will not be',
7852:'questioned. b223678, june 5, 1989. accordingly, r&r funds have been found available for the following: holiday party for government officials',
7853:'and their spouses or guests, held by secretary of the interior at the custislee mansion. 61 comp. gen. 260 1982,',
7854:'aff’d upon reconsideration, b2061732, aug. 3, 1982. party for various government officials and their families or guests held on july',
7855:'4 by secretary of interior to celebrate independence day. b212634, oct. 12, 1983. 88 pub. l. no. 86158, § 209,',
7856:'73 stat. 339, 355 aug. 14, 1959. 89 pub. l. no. 88136, § 905, 77 stat. 224, 246 oct. 11,',
7857:'1963. 90 h.r. conf. rep. no. 88774, at 11 1963. page 4138 gao04261sp appropriations law—vol. i chapter 4 availability of',
7858:'appropriations: purpose luncheon incident to “graduation ceremony” for latin american students being trained by the bureau of labor statistics. b84184,',
7859:'mar. 17, 1949. entertainment of british war workers visiting various american cities as guests of the british ministry of information.',
7860:'b46169, aug. 18, 1945.91 cost of food and entertainment provided by general services administration at grand opening of a government',
7861:'cafeteria “to the extent that the grand opening otherwise qualifies as an official reception.” b250450, may 3, 1993. cost of',
7862:'meals at “representational” interagency briefings for executive branch employees personally hosted by director of the trade and development program of',
7863:'the united states agency for international development. 72 comp. gen. 310 1993. in a case previously noted in our coverage',
7864:'of award ceremonies, the veterans administration could not use its general appropriations to provide refreshments at an awards ceremony for',
7865:'volunteers, but it could use its r&r appropriation. 43 comp. gen. 305 1963. an agency may also use its r&r',
7866:'funds, although it is not required to, for refreshments at award ceremonies under the government employees’ incentive awards act, 5',
7867:'u.s.c. §§ 4501–4506. 65 comp. gen. 738, 741 n.5 1986. a case relied on in b223678 was b122515, feb. 23,',
7868:'1955, in which the comptroller general held that a “representation allowance” similar to the state department appropriation discussed above could',
7869:'be used to purchase printed invitation cards and envelopes in connection with an official function at an overseas mission. in',
7870:'42 comp. gen. 19 1962 and in b131611, may 24, 1957, however, a similar appropriation to the foreign agricultural service',
7871:'was not available for printed invitations because an executive order provided that the foreign agricultural service was to be governed',
7872:'by state department regulations, and the applicable state department regulations prohibited the use of representation allowances for printing cards. 91',
7873:'the decision modified the result of an earlier decision, b46169, dec. 21, 1944, based on a change in the relevant',
7874:'appropriation language. the 1944 decision contains a fuller statement of the facts. page 4139 gao04261sp appropriations law—vol. i chapter 4',
7875:'availability of appropriations: purpose notwithstanding the discretion it confers, an r&r appropriation is not intended to permit government officials to',
7876:'feed themselves and one another incident to the normal daytoday performance of their jobs. thus, gao has held that r&r',
7877:'funds may not be used to provide food or refreshments at intragovernment work sessions or routine business meetings, even if',
7878:'held outside of normal working hours. b223678, june 5, 1989. see also b250884, mar. 18, 1993 the cost of meals',
7879:'provided to government employees during interagency working meetings improperly charged to r&r funds. a final but significant limitation on the',
7880:'use of representation funds stems from the appropriation language itself—r&r appropriations are made for the expenses of official reception and',
7881:'representation activities. there must be some connection with official agency business. thus, it would be improper to use representation funds',
7882:'for a social function hosted and attended by private parties, such as a breakfast for cabinet wives. 61 comp. gen.',
7883:'260 1982, aff’d upon reconsideration b2061732, aug. 3, 1982. similarly, r&r funds may not be used for entertainment incident to',
7884:'an activity which is itself unauthorized. 68 comp. gen. 226 1989 entertainment incident to trade show in soviet union which',
7885:'agency had no authority to sponsor. the impropriety of the underlying activity necessarily “taints” the entertainment expenditures. 6. fines and',
7886:'penalties as a general proposition, no authority exists for the federal government to use appropriated funds to pay fines or',
7887:'penalties incurred as a result of its activities or those of its employees. in the most common situation, a fine',
7888:'is assessed against an individual employee for some action he or she took in the course of performing official duties.',
7889:'the cases frequently involve traffic violations. the rule is that appropriated funds are not available to pay the fine or',
7890:'reimburse the employee. the theory is that, while an employee may have certain discretion as to precisely how to perform',
7891:'a given task, the range of permissible discretion does not include violating the law. if the employee chooses to violate',
7892:'the law, he is acting beyond the scope of his authority and must bear any resulting liability as his personal',
7893:'responsibility. the earliest case stating the rule appears to be b58378, july 31, 1946. holding that a government employee ticketed',
7894:'for parking a government vehicle in a “no parking” zone could not be reimbursed, the comptroller general stated: page 4140',
7895:'gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose “[t]here is not known to this office any authority to',
7896:'use appropriated moneys for payment of the amount of a fine imposed by a court on a government employee for',
7897:'an offense committed by him while in the performance of, but not as a part of, his official duty. such',
7898:'fine is imposed on the employee personally and payment thereof is his personal responsibility.” the rule applies to forfeitures of',
7899:'collateral as well as fines. b102829, may 8, 1951. the first published decision stating the rule, and the case most',
7900:'often cited, is 31 comp. gen. 246 1952. a government employee doubleparked a government vehicle to make a delivery. while',
7901:'the employee was inside the building, the inner vehicle drove away, leaving the government vehicle unattended in the middle of',
7902:'the street, whereupon it was ticketed. citing b58378 and b102829, the comptroller general held that the employee could not be',
7903:'reimbursed from appropriated funds for the amount of the fine.92 gao has applied the rule even in a case where',
7904:'the employee could establish that the speedometer on the government vehicle was inaccurate. b173660, nov. 18, 1971. while at first',
7905:'glance this might seem like a harsh and unfair result, it in fact was not, at least in that particular',
7906:'case. in that case, the employee was ticketed for driving at 85 m.p.h. the speedometer at the time read a',
7907:'mere 73 m.p.h. conceding the established inaccuracy of the speedometer, the employee nevertheless, by observing other vehicles on the road',
7908:'and applying common sense, should have suspected that he was driving at an excessive rate of speed. further, in a',
7909:'case involving a possessory interest tax, a tax on the rental interest in government owned property, b251228, july 20, 1993,',
7910:'the forest service was not permitted to pay penalties and interest assessed against an employee for a delay in payment',
7911:'of the tax due while the employee occupied governmentowned quarters. the penalties and interest were 92 for other cases involving',
7912:'motor vehicle violations, see 57 comp. gen. 270 1978; b250880, nov. 3, 1992; b238612, apr. 16, 1990; b147420, apr. 18,',
7913:'1968; b168096o.m., aug. 31, 1976; b147420, july 27, 1977 nondecision letter; b173783.188, mar. 24, 1976 nondecision letter. page 4141 gao04261sp',
7914:'appropriations law—vol. i chapter 4 availability of appropriations: purpose considered to be personal liabilities of the employee and not the',
7915:'federal government. the very statement of the rule as quoted above from b58378 suggests that there may be situations in',
7916:'which reimbursement is permissible. the exception occurred in 44 comp. gen. 312 1964. in connection with the case of sam',
7917:'giancana v. j. edgar hoover, 322 f.2d 789 7th cir. 1963, an agent of the federal bureau of investigation fbi',
7918:'was ordered by the court to answer certain questions. based on justice department regulations and specific instructions from the attorney',
7919:'general, the fbi agent refused to testify and was fined for contempt of court. the contempt order was upheld in',
7920:'sam giancana v. marlin w. johnson, 335 f.2d 372 7th cir. 1964. finding that the employee had incurred the fine',
7921:'by reason of his compliance with department regulations and instructions and that he was without fault or negligence, gao held',
7922:'that the fbi could reimburse the agent from its salaries and expenses appropriation under the “necessary expense” doctrine.93 subsequently, some',
7923:'people thought that 31 comp. gen. 246 and 44 comp. gen. 312 appeared inconsistent, and gao has discussed the two',
7924:'lines of reasoning in several later decisions. the distinction is this: in 31 comp. gen. 246, the offense was committed',
7925:'while performing official duties but it was not a necessary part of those duties. the employee could have made the',
7926:'delivery without parking illegally. the fine in 44 comp. gen. 312 was “necessarily incurred” in the sense that the employee',
7927:'was following his agency’s regulations and the instructions of his agency head. thus, the actions that gave rise to the',
7928:'contempt fine could be viewed as a necessary part of the employee’s official duties, although certainly not in the sense',
7929:'that it would have been physically impossible for the employee to have done anything else. applying these concepts, the comptroller',
7930:'general held in b205438, nov. 12, 1981, that the federal mediation and conciliation service could reimburse a former employee for',
7931:'a contempt fine levied against him for refusal to testify, pursuant to agency regulations and instructions, on matters discussed at',
7932:'a mediation session at which he was present while employed by the agency. 93 b239556, oct. 12, 1990 and b242786,',
7933:'jan. 31, 1991, substantially supported the rule stated in giancana and explained the rationale behind it drawing a distinction between',
7934:'criminal and civil contempt and the punitive nature of the awards. page 4142 gao04261sp appropriations law—vol. i chapter 4 availability',
7935:'of appropriations: purpose reimbursement was denied, however, in b186680, oct. 4, 1976. there, a justice department attorney was fined for',
7936:'contempt for missing a court imposed deadline. the attorney had been working under a number of tight deadlines and argued',
7937:'that it was impossible to meet them all. however, he had not been acting in compliance with regulations or instructions,',
7938:'had exercised his own judgment in missing the deadline in question, and the record did not support a determination that',
7939:'he was without fault or negligence in the matter. therefore, the case was governed by 31 comp. gen. 246 rather',
7940:'than 44 comp. gen. 312. reading all of these cases together, it seems fair to state that the mere fact',
7941:'of compliance with instructions will not by itself be sufficient to authorize reimbursement. there must be some legitimate government interest',
7942:'to protect. thus, it would not be sufficient to instruct an employee to refuse to testify where the purpose is',
7943:'to avoid embarrassment or to avoid the disclosure of government wrongdoing. similarly, it would follow that the prohibition against reimbursement',
7944:'of traffic fines could not be circumvented merely because some supervisor instructed a subordinate to park illegally. the two lines',
7945:'of cases were discussed in the specific context of traffic violations in b107081, jan. 22, 1980, a response to a',
7946:'member of congress. summarizing the rules discussed above, the comptroller general pointed out that they applied equally to law enforcement',
7947:'personnel. however, the comptroller general alluded to one situation in which reimbursement might be authorized—a parking fine incurred by a',
7948:'law enforcement official as a necessary part of an official investigation. an example might be parking an unmarked undercover vehicle',
7949:'during a surveillance where there was no other feasible alternative. compare 38 comp. gen. 258 1958 concerning the reimbursement of',
7950:'parking meter fees. another situation in which a fine was held reimbursable is illustrated in 57 comp. gen. 476 1978.',
7951:'forest service employees had loaded logs on a truck to transport them from virginia to west virginia. in virginia, the',
7952:'driver was fined for improper loading overweight on rear axle. the employees had loaded the logs in a forest and',
7953:'there was no way for them to have checked the weight. the fine did not result from any negligent or',
7954:'intentional act on the part of the driver. under these circumstances, the comptroller general found that the fine was not',
7955:'for any personal wrongdoing by the employee but was, in effect, a citation against the united states. therefore, forest service',
7956:'appropriations were available to reimburse the fine. this situation is distinguishable from the case of an page 4143 gao04261sp appropriations',
7957:'law—vol. i chapter 4 availability of appropriations: purpose overweight fine levied against a commercial carrier, which is not reimbursable. 35',
7958:'comp. gen. 317 1955. similar reasoning applies with respect to penalties in the form of liquidated damages assessed against a',
7959:'government employee who fails to either use or cancel airline reservations in accordance with the carrier’s applicable tariff. if the',
7960:'charges are unavoidable in the conduct of official travel or are incurred for reasons beyond the traveler’s control and acceptable',
7961:'to the agency concerned, they may be reimbursed from the agency’s travel appropriations. however, if the charges are not unavoidable',
7962:'in the performance of official business nor incurred for reasons beyond the employee’s control and acceptable to the agency, they',
7963:'are personal to the employee and may not be reimbursed. 41 comp. gen. 806 1962. in 70 comp. gen. 153',
7964:'1990, gao recognized that the government may reimburse an employee for the payment of a fine or penalty where the',
7965:'government has agreed to do so by contract. in this case, the selective service system had leased vehicles under a',
7966:'contract with a commercial vendor in the district of columbia. the government had agreed to “hold [the] lessor harmless” for',
7967:'any fine or penalty imposed on the vehicles. one of the vehicles received a ticket for failure to have a',
7968:'current safety inspection sticker. although the lessor was arguably responsible for the ticket, the government employee had paid the ticket',
7969:'and was seeking reimbursement. gao therein stated that: “[t]he government’s immunity from state or municipal fines is inapplicable when the',
7970:'legal incidence of the fine is not imposed directly on the government but, instead, is imposed on the lessor, and',
7971:'the fine is merely a measure of damages for the government’s failure to comply with the terms of its agreement',
7972:'and against which the government has agreed to indemnify the lessor.” the case was returned to the selective service system',
7973:'to make a determination as to whether, under d.c. law, the lessor was liable for the ticket. for further discussion',
7974:'of the concept of “legal incidence” and the government’s immunity, see section c.7.c in this chapter. the cases discussed so',
7975:'far have all involved fines levied against individual employees. questions may also arise over the liability of a federal agency',
7976:'for a fine or civil penalty. the question is essentially one of sovereign immunity. in order for a federal agency',
7977:'to be liable for a fine or penalty, page 4144 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose',
7978:'there must be an express statutory waiver of sovereign immunity. e.g., united states department of energy v. ohio, 503 u.s.',
7979:'607 1992. for example, the clean air act provides for the administrative imposition of civil penalties for violation of state',
7980:'or local air quality standards. the statute directs the federal government to comply with these standards and makes government agencies',
7981:'liable for the civil penalties to the same extent as nongovernmental entities. in view of this express waiver of sovereign',
7982:'immunity, the comptroller general held that agency operating appropriations are available, under the “necessary expense” theory, to pay administratively imposed',
7983:'civil penalties under the clean air act. b191747, june 6, 1978. if the penalty is imposed by court action, it',
7984:'may be paid from the permanent judgment appropriation, 31 u.s.c. § 1304. however, if there is no legitimate dispute over',
7985:'the basis for liability or the amount of the penalty, an agency may not avoid use of its own appropriations',
7986:'by the simple device of refusing to pay and forcing the state or local authority to sue. 58 comp. gen.',
7987:'667 1979. absent the requisite statutory waiver of sovereign immunity, the agency’s appropriations would not be available to pay a',
7988:'fine or penalty. for example, in 65 comp. gen. 61 1985, appropriated funds were not available to pay a “fee,”',
7989:'which was clearly in the nature of a penalty, imposed by a city of boston ordinance for equipment malfunctions resulting',
7990:'in the transmission of false fire alarms. see also b227388, sept. 3, 1987 no authority to pay false alarm fines',
7991:'imposed by municipality. what about a penalty assessed by one federal agency against another? in b161457, may 9, 1978, the',
7992:'comptroller general held that, absent a statute specifically so providing, an agency’s appropriations are not available to pay penalties assessed',
7993:'by the internal revenue service for late filing or underpayment of employment taxes. the reason is that this would constitute',
7994:'a use of the funds for a purpose other than that for which they were appropriated. also, in b260532, may',
7995:'9, 1995, the comptroller general held that there was no authority for the government printing office to directly charge other',
7996:'federal agencies interest for payments that the government printing office considered to be “late.” page 4145 gao04261sp appropriations law—vol. i',
7997:'chapter 4 availability of appropriations: purpose 7. firefighting and other municipal services a. firefighting services: availability of appropriations a frequent',
7998:'subject of inquiry has been the authority of the federal government to voluntarily contract, or to pay involuntary assessments, for',
7999:'firefighting services rendered by local governments to federal property and buildings. the general rule is: if the political subdivision rendering',
8000:'the service is required by law to extinguish fires within its boundaries, then the united states cannot make additional payments',
8001:'in any form to underwrite that legal responsibility. the earliest published decision containing a detailed discussion of the rule and',
8002:'its rationale is 24 comp. gen. 599 1945. the rule proceeds from the premise that firefighting is a governmental rather',
8003:'than a proprietary or business function. where a local firefighting organization city or county fire department, fire protection district, etc.',
8004:'is required by local law to cover a particular territorial area and to respond to fires without direct charge to',
8005:'the property owners, this duty extends to federal as well as nonfederal property within that territorial area. a charge to',
8006:'appropriated funds under these circumstances would amount to a tax or a payment in lieu of taxes and would, absent',
8007:'specific statutory authority, violate the government’s constitutional immunity from taxation. b243004, sept. 5, 1991. it follows that the government may',
8008:'not contract for firefighting services that it would be legally entitled to receive in any event,94 nor may it reimburse',
8009:'a political subdivision for the additional costs incurred in fighting a federal fire.95 see 53 comp. gen. 410 1973 and',
8010:'cases cited therein. in addition to the taxation problem, use of appropriated funds for this purpose would violate the purpose',
8011:'statute at 31 u.s.c. § 1301a. 32 comp. gen. 91 1952. limited reimbursement authority now exists by virtue of the',
8012:'federal fire prevention and control act of 1974, codified at 15 u.s.c. § 2210, discussed later in this section. the',
8013:'present discussion concerns the availability of appropriations apart from that limited authority. 94 in addition to the cases cited in',
8014:'the text, see b131932, mar. 13, 1958; b125617, apr. 11, 1956; b126228, jan. 6, 1956; b105602, dec. 17, 1951; b40387o.m.,',
8015:'june 24, 1966. 95 in addition to the cases cited in the text, see b167709, sept. 9, 1969; b153911, dec.',
8016:'6, 1968; b147731, jan. 22, 1962. page 4146 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose in applying',
8017:'the rule, it is irrelevant that a city cannot regulate building and fire codes for structures on a military establishment',
8018:'within the city limits. 24 comp. gen. 599 1945. also, the rule applies equally when the fire protection is provided',
8019:'by a volunteer fire department performing the mandatory governmental function for a political subdivision. the fact that the firefighters are',
8020:'unpaid does not affect the local government unit’s legal duty to render the service. 26 comp. gen. 382 1946; b47142,',
8021:'apr. 3, 1970. in 53 comp. gen. 410 1973, gao denied a claim by the st. louis community fire protection',
8022:'district cfpd and several surrounding fire districts and departments for equipment losses and supplemental payroll expenses incurred in fighting a',
8023:'massive fire at the st. louis federal records center. the st. louis cfpd could not be reimbursed because the records',
8024:'center was within its territorial responsibility. the surrounding fire districts were also under a duty to respond to the alarm',
8025:'because they had entered into mutual aid agreements with the st. louis cfpd that had the effect of extending their',
8026:'own areas of responsibility. in some rural areas, firefighting services may be unavailable or very limited. in such areas, the',
8027:'government may have to provide its own fire protection. the comptroller general had stated, in 32 comp. gen. 91 1952,',
8028:'that an agency could not enter into “mutual aid agreements” to extend that service to the general community beyond the',
8029:'boundaries of government property, even where the local inhabitants were predominantly government employees and where the additional protection could be',
8030:'accomplished without additional expense. later, congress enacted legislation specifically authorizing reciprocal agreements for mutual aid. 42 u.s.c. §§ 1856–1856d. this',
8031:'statutory authority is limited to mutual aid agreements and does not authorize an agency to enter into an agreement to',
8032:'reimburse a political subdivision for services unilaterally provided to the government. 35 comp. gen. 311, 313 1955; b243004, sept. 5,',
8033:'1991; b126228, jan. 6, 1956; b40387o.m., june 24, 1966. an agency participating in a mutual aid agreement under this authority',
8034:'may contribute, on a basis comparable to other participants, to a common fund to be used for training and equipment',
8035:'incident to responding to fires and related emergencies such as hazardous waste accidents. b222821, apr. 6, 1987. if the government',
8036:'may not contract for or reimburse fire protection services which a local entity is legally required to provide, it follows',
8037:'that the government may not pay a “service charge” for fire protection provided by a municipality with respect to federal',
8038:'property within the city limits, at least where the assessment for fire protection is normally included in the page 4147',
8039:'gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose city’s property tax. in 49 comp. gen. 284 1969, the',
8040:'city of new london, connecticut, sought to charge the government on a direct costrelated basis for fire protection afforded the',
8041:'united states coast guard academy. fire protection was included in the city’s real estate tax and the service charge was',
8042:'to apply only to taxexempt property. in view of the city’s duty to provide fire protection to the academy, the',
8043:'comptroller general found the proposed charge to be an unconstitutional tax on the government. see also b160936, mar. 13, 1967.',
8044:'however, a flatfee service charge levied by a utility district for extinguishing a fire in a postal vehicle was held',
8045:'permissible where the utility district was under no legal obligation to provide the service. b123294, may 2, 1955. in b168024,',
8046:'dec. 13, 1973, a city was required to provide fire protection to all property within its boundaries, but was given',
8047:'the option under state law of financing the fire protection by service charges rather than from general tax revenues. in',
8048:'these circumstances, it was held that the united states could pay a valid service charge, although the charge in that',
8049:'particular case was held to be a tax and therefore invalid because it was based on the value of the',
8050:'property rather than the quantum of services provided. the decision contains a useful discussion of the distinction between a service',
8051:'charge and a tax.96 similarly, in b243004, sept. 5, 1991, a service charge was imposed on the bureau of reclamation',
8052:'for fire protection on federal property where the city was not required to provide such services. if the charge for',
8053:'firefighting services bears a reasonable relationship to the quantum of services provided and is charged proportionately against all who use',
8054:'the services, it need not be considered a tax but a fee for services that the united states may pay.',
8055:'in this case, however, the method used to compute the charge was found not to bear any particular relationship to',
8056:'the services rendered, and hence, was not payable. because the rule is predicated on the existence of state laws requiring',
8057:'political subdivisions to provide firefighting services, it would not apply in instances where there is no entitlement to service. thus,',
8058:'reimbursement was allowed in 3 comp. gen. 979 1924 where a fire unit had no legal duty to respond to',
8059:'an emergency call outside its district. it was further noted that there was no violation of the prohibition on accepting',
8060:'voluntary 96 for more on the distinction between a tax and a service charge, see “other municipal services” later in',
8061:'this section, and section c.15 of this chapter. page 4148 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose',
8062:'services now found in 31 u.s.c. § 1342 part of the antideficiency act. similarly, a contractual agreement for fire protection',
8063:'with the nearest fire district may be proper where the federal property in question is not served by any fire',
8064:'district. 35 comp. gen. 311 1955. under the same theory, the comptroller general held that the bureau of indian affairs',
8065:'could make a financial contribution to the “community fire truck,” a volunteer firefighting organization which otherwise would have been under',
8066:'no obligation to respond to fires at an indian school outside the limits of the city served by the organization.',
8067:'34 comp. gen. 195 1954. see also b163089, feb. 8, 1968; b123294, may 2, 1955. however, there is no authority',
8068:'to pay for fire services rendered without a preexisting legal obligation if such services were necessary to protect adjoining state',
8069:'or privately owned property as to which such a legal duty existed. 30 comp. gen. 376 1951. a variation occurred',
8070:'in b116333o.m., oct. 15, 1953, in which it was held permissible to reimburse a private firefighting enterprise for repair and',
8071:'maintenance service to hydrants and fire alarm boxes on a government owned and operated housing facility, irrespective of the duty',
8072:'of the municipality. in the analysis of legal duty to provide protection, it is irrelevant that the government may have',
8073:'engaged in an activity causing the fire. 32 comp. gen. 401 1953; b167709, sept. 9, 1969; b147731, dec. 28, 1961;',
8074:'b6400, aug. 28, 1940.97 similarly, there is no estoppel created by the fact that the united states operated its own',
8075:'fire protection at a given installation for a period of time. if the legal duty to provide protection exists, the',
8076:'united states is entitled to claim protection at any time its own service becomes obsolete, undesirable, or uneconomical. b129013, sept.',
8077:'20, 1956; b126228, jan. 6, 1956. an exception to the general rule may exist in the case of a “federal',
8078:'enclave.” this term usually describes large tracts of land held under exclusive federal jurisdiction. in 45 comp. gen. 1 1965,',
8079:'the comptroller general held that, despite locally available protection, a federal enclave could provide its own 97a claim for expenses',
8080:'as opposed to damages incurred by a state in suppressing a fire starting on federal property and allegedly caused by',
8081:'the negligence of a federal employee is not a claim for injury or loss of property under the federal tort',
8082:'claims act, 28 u.s.c. §§ 2671 et seq., and is therefore not cognizable under that act. oregon v. united states,',
8083:'308 f.2d 568 9th cir. 1962, cert. denied, 372 u.s. 941 1963; california v. united states, 307 f.2d 941 9th',
8084:'cir. 1962, cert. denied, 372 u.s. 941 1963; b163089, oct. 19, 1970. page 4149 gao04261sp appropriations law—vol. i chapter 4',
8085:'availability of appropriations: purpose b. federal fire prevention and control act of 1974 fire protection on a contract basis. further,',
8086:'adjacent land under federal control but not part of the federal enclave could be protected under the same contractual arrangement.',
8087:'however, an additional factor in 45 comp. gen. 1 was that legitimate doubt existed as to whether the fire district',
8088:'was under a legal obligation under state law to provide services to the federal property involved, and the district had',
8089:'petitioned the state government to redraw its boundaries to exclude the federal property. the effect of this factor is unclear,',
8090:'and since that time, no case has been decided in which a federal enclave was involved. note that the threatened',
8091:'exclusion of the federal property was based on a legitimate doubt as to whether protection was required by state law.',
8092:'if protection is required, exclusion would be improper. see b129013, sept. 20, 1956. cf. b192641, may 2, 1979 nondecision letter',
8093:'questioning a redistricting to exclude federal property that was not a federal enclave. a 1981 decision addressed the authority of',
8094:'the bureau of land management to contract with rural fire districts in oregon and washington for fire protection and firefighting',
8095:'services for federally owned timberlands in those states. the comptroller general reviewed the principles and precedents established over the years',
8096:'and concluded that, since the fire districts were legally required to protect the federal tracts, the bureau could not enter',
8097:'into the desired contracts without specific statutory authority. however, bureau installations with a federally maintained firefighting capacity could enter into',
8098:'mutual aid agreements under 42 u.s.c. § 1856, discussed above. 60 comp. gen. 637 1981. in light of the huge',
8099:'losses suffered by local fire districts in the 1973 st. louis records center fire, the need for some legislative action',
8100:'became apparent. the result was section 11 of the federal fire prevention and control act of 1974, pub. l. no.',
8101:'93498, 88 stat. 1535, 1543 oct. 29, 1974, codified at 15 u.s.c. § 2210. this provision allows a fire service',
8102:'fighting a fire on federal property to file a claim for the direct expenses and direct losses incurred. the claim',
8103:'is filed with the united states fire administration, federal emergency management agency fema.98 the amount allowable is the amount by',
8104:'which the additional firefighting costs, over and above the claimant’s normal operating costs, exceed the total of any payments made',
8105:'by the united states to the claimant or its parent 98 fema was transferred to the department of homeland security',
8106:'by pub. l. no. 107296, § 503, 166 stat. 2135, 2213 nov. 25, 2002. page 4150 gao04261sp appropriations law—vol. i',
8107:'chapter 4 availability of appropriations: purpose jurisdiction for the support of fire services on the property in question, including taxes',
8108:'and payments in lieu of taxes. fema, upon determining the amount allowable, must forward it to the treasury department for',
8109:'payment. the comptroller general has determined that section 11 constitutes a permanent indefinite appropriation for the payment of these claims.',
8110:'b160998, apr. 13, 1978. disputes under section 11 may be adjudicated in the united states claims court. fema has issued',
8111:'implementing regulations at 44 c.f.r. pt. 151.99 notwithstanding this authority, the decisions discussed previously in this section remain significant for',
8112:'several reasons. first, they define the extent to which an agency may use its own appropriations apart from section 11.',
8113:'second, they define the extent to which an agency may contract for fire protection services. finally, section 11 provides that',
8114:'payment shall be subject to reimbursement by the federal agency under whose jurisdiction the fire occurred, “from any appropriations which',
8115:'may be available or which may be made available for the purpose.” although no decision has been rendered on this',
8116:'point, it would seem that the existing body of decisions provides a starting point in determining the extent to which',
8117:'an agency’s operating appropriations “may be available” to make this reimbursement. c. other municipal services the principles involved in the',
8118:'firefighting cases are relevant to other municipal services as well. the closest analogy is police protection. like fire protection, police',
8119:'protection is a mandatory governmental function. thus a municipality may not levy direct charges against the united states for ordinary',
8120:'police protective services provided within its area of jurisdiction. 49 comp. gen. 284, 286–87 1969; b187733, oct. 27, 1977. however,',
8121:'the united states may pay on a quantum meruit basis for police services over and above the ordinary level, where',
8122:'the city is not required to provide such extraordinary services and where the same charge would be imposed on nonfederal',
8123:'users in like circumstances. examples are: extra police for special events such as football games at the coast guard academy',
8124:'99 section 2465 of title 10 of the united states code prohibits dod contracts for firefighting or security guard functions,',
8125:'although this provision has been suspended during operation enduring freedom by pub. l. no. 10756, title x, § 1010, 115',
8126:'stat. 272, 395 oct. 26, 2001. page 4151 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose 49 comp.',
8127:'gen. at 287 and special police details at bicentennial ceremonies b187733, oct. 27, 1977. the same principles have been applied',
8128:'to emergency ambulance services required to be furnished by a municipality. 49 comp. gen. at 286. however, contracts with state',
8129:'or local governments or private entities for ambulance services have been held permissible where there was no requirement for the',
8130:'political subdivision involved to provide ambulance services without direct charge. 51 comp. gen. 444 1972, modifying b172945, june 22, 1971;',
8131:'b198032, june 3, 1981. another example is the maintenance of public highways. see b199205, apr. 27, 1981. a charge for',
8132:'services rendered by a state or local government to the united states is to be distinguished from a tax; the',
8133:'former may be paid while the latter may not. e.g., 20 comp. gen. 748 1941. while this distinction does not',
8134:'apply to mandatory governmental functions such as police and fire protection, it has frequently been cited in connection with such',
8135:'things as water and sewer services. as a general proposition, a charge for water and/or sewer services is a permissible',
8136:'service charge rather than a tax if it is based on the quantum of direct services actually furnished. a federal',
8137:'agency may generally pay service charges such as those for municipal sewer service, so long as the charges represent the',
8138:'fair and reasonable value received by the united states for the services. gao has also held that, in the context',
8139:'of utility services, where rates are established by a legislative body, such rates are controlling unless they are manifestly unjust,',
8140:'unreasonable, or discriminatory. 73 comp. gen. 1 1993. in that 1993 case, gao questioned discounts built into the city’s fee',
8141:'structure that were not afforded to the federal agency, and held that the sewer charge may be paid only to',
8142:'the extent that the city makes and documents a nondiscriminatory assessment for the reasonable value of sewer services rendered. see',
8143:'31 comp. gen. 405 1952 assessment for water/sewer services levied on citywide basis rather than quantum of service rendered held',
8144:'a tax; 29 comp. gen. 120 1949 sewer service charge held payable on quantum meruit basis; 20 comp. gen. 206',
8145:'1940 water charge held to be a tax where it was levied as a flat charge rather than on the',
8146:'basis of actual water consumption. see also 49 comp. gen. 284 1969; b243004, sept. 5, 1991; b168024, dec. 13, 1973;',
8147:'b105117, mar. 16, 1953. also, in 70 comp. gen. 687 1991, gao held that the forest service may pay county',
8148:'landfill user fees as a reasonable service charge, analogous to other utility services provided the government, since the charge was',
8149:'based on levels of service provided and appeared nondiscriminatory. page 4152 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations:',
8150:'purpose a reasonable charge based on the quantum of direct services actually furnished need not be considered a tax even',
8151:'though the services in question are provided to the taxpayers of the political subdivision without a direct charge, provided of',
8152:'course that the political subdivision is not required by law to furnish the service without direct charge. such a charge',
8153:'may be paid if it is applied equally to all taxexempt property, but not if it applies only to federal',
8154:'taxexempt property. 50 comp. gen. 343 1970. a sewer service charge which is otherwise proper may be paid in advance',
8155:'if required by local law, notwithstanding 31 u.s.c. § 3324. 73 comp. gen. 1 1993. the government’s liability would also',
8156:'include late payment penalties to the extent required by local law. 39 comp. gen. 285 1959. gao has applied the',
8157:'same principles to charges for 911 emergency services. in a series of cases, gao examined 911 charges in several states',
8158:'and found that they amounted to a tax and therefore could not be assessed against the united states or its',
8159:'agencies. 66 comp. gen. 385 1987 florida; 65 comp. gen. 879 1986 maryland; 64 comp. gen. 655 1985 texas; b300737,',
8160:'june 27, 2003 alabama; b230691, may 12, 1988 tennessee; b239608, dec. 14, 1990 nondecision letter rhode island. one decision stated:',
8161:'“in our view, telephone access to police, fire and other municipal services, is intrinsically connected to the services themselves. the',
8162:'fact that 911 service is more technologically sophisticated than normal telephone access does not change its essential character.” 66 comp.',
8163:'gen. at 386. in each case, the charges were included in telephone bills, with the telephone company acting as collection',
8164:'agent for the relevant governmental authority. as noted in 66 comp. gen. 385, 387, a 911 fee might be properly',
8165:'payable if a telephone company installed and operated the system itself and, as with directory assistance for example, offered the',
8166:'service as a component of its regular communications services. however, in none of the situations examined was this the case.',
8167:'several characteristics of the systems support the conclusion of nonliability: the service is provided by a local government or quasi',
8168:'governmental unit; public funding of the service requires legal authority such as an ordinance or referendum; and the charge is',
8169:'not related to actual levels of service but is based on a flat rate per telephone line. 65 comp. gen.',
8170:'at 881. it is irrelevant that the 911 charge is called a “service charge” page 4153 gao04261sp appropriations law—vol. i',
8171:'chapter 4 availability of appropriations: purpose b230691 or a “service fee” 64 comp. gen. 655, or that state law provides',
8172:'that the charge shall not be construed as a tax b230691, or that the local government has threatened to cut',
8173:'off access 66 comp. gen. 385. the same analysis produced the same result in b227388, sept. 3, 1987, in which',
8174:'a municipality tried to charge a federal agency a registration fee for 911 services. the distinction between “vendor taxes” and',
8175:'“vendee taxes” discussed later in this chapter, that is, the applicability or nonapplicability to the government depending on the “legal',
8176:'incidence” of the tax, applies as well to 911 charges. when the legal incidence of a tax falls directly on',
8177:'the federal government as the “vendee,” the tax is not payable unless expressly authorized by congress. 64 comp. gen. 655,',
8178:'656–57 1985. on the other hand, if the legal incidence of the tax falls directly on a business enterprise the',
8179:'“vendor”, which is supplying the federal government as a customer with goods or services, immunity does not apply. 61 comp.',
8180:'gen. 257 1982. thus, in b238410, sept. 7, 1990, gao considered the arizona 911 statute, found that it was a',
8181:'vendor tax and, distinguishing the prior 911 decisions, concluded that it could be assessed against the federal government. a final',
8182:'group of cases involves the installation of traffic signals. at one point, gao took the position, subsequently modified, that appropriated',
8183:'funds could not be used to pay for or contribute to the installation of traffic signals on public roads or',
8184:'highways, regardless of the resulting benefit to the government. traffic control, so the reasoning went, is a municipal service financed',
8185:'by tax revenues the same as police or firefighting services, for which payment by a federal agency is not permissible.',
8186:'51 comp. gen. 135 1971; 36 comp. gen. 286 1956. a different situation was presented in 55 comp. gen. 1437',
8187:'1976. there, a state highway bisected an army installation and the army wanted to install a traffic light to regulate',
8188:'traffic at the intersection of the state highway and a road on the army facility. local authorities had agreed to',
8189:'repair and maintain the light if the army would purchase and install it. since the light would be located on',
8190:'federal property and would be for the primary benefit of the federal facility, even though it would regulate traffic on',
8191:'the state highway as well, gao distinguished the prior cases and concluded that the army could use its appropriations for',
8192:'the proposed expenditure. in 1982, gao modified the prior decisions and held that traffic signals at or near a federal',
8193:'facility, where the federal facility is the primary beneficiary page 4154 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations:',
8194:'purpose and benefit to the general public is incidental, should be governed by the same tests applicable to other municipal',
8195:'services. if the state or local government is legally required to provide the service to all residents free of charge,',
8196:'the federal agency may not pay. if, however, the service is not legally required and the charge does not discriminate',
8197:'against the united states—that is, any other resident would be subject to a similar charge— then the appropriations of the',
8198:'benefiting agency may be used. 61 comp. gen. 501 1982. does the primary benefit shift where the federal agency is',
8199:'leasing the property from a private owner? gao said no in 65 comp. gen. 847 1986, but the lease in',
8200:'that case was to continue for at least another 6 years. compare 71 comp. gen. 4 1991. the answer would',
8201:'presumably be different if the agency was about to vacate, but the decision does not purport to address precisely where',
8202:'the line should be drawn. 8. gifts and awards a. gifts an agency frequently wants to use gifts to attract',
8203:'attention to the agency or to specific programs. for example, gifts can be used as recruiting tools, to commemorate an',
8204:'event, or to inform the public or agency employees about the agency. appropriated funds may not be used for personal',
8205:'gifts, unless, of course, there is specific statutory authority. 68 comp. gen. 226 1989. to state the rule in this',
8206:'manner is to make it appear rather obvious. if, for example, a general counsel decided it would be a nice',
8207:'gesture and improve employee morale to give each lawyer in the agency a thanksgiving turkey, few would argue that the',
8208:'expense should be borne by the agency’s appropriations. appropriated funds could not be used because the appropriation was not made',
8209:'for this purpose assuming, of course, that the agency has not received an appropriation for thanksgiving turkeys and because giving',
8210:'turkeys to lawyers is not reasonably necessary to carry out the mission at least of any agency that now exists.',
8211:'most cases, however, are not quite this obvious or simple. the cases generally involve the application of the necessary expense',
8212:'doctrine, and, as with any necessary expense analysis, the result turns on whether the item will directly further the agency’s',
8213:'mission. occasionally, an item that would typically be viewed as a personal gift may, in other circumstances, help advance an',
8214:'agency’s mission. in making the analysis, it makes no difference whether the “gift items” are given to federal employees page',
8215:'4155 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose or to others. the connection is either there or,',
8216:'far more commonly, it is not. in each of the cases in which funds have been found unavailable, there was',
8217:'a certain logic to the agency’s justification, and the amount of the expenditure in many cases was small. the problem',
8218:'is that, in most cases, were the justification put forward by the agency deemed sufficient, there would be no stopping',
8219:'point. if a free ashtray might generate positive feelings about an agency or program or enhance motivation, so would a',
8220:'new car or an infusion of cash into the bank account. the rule prohibiting the use of appropriated funds for',
8221:'personal gifts reflects the clear potential for abuse. because a necessary expense analysis is, of course, case specific, it is',
8222:'impossible to draw a rational line identifying those gift items that are acceptable and those that are not. that certainly',
8223:'is evident from the discussion that follows. it is important that anyone confronting a “gift” issue scrutinize the case law',
8224:'carefully to appreciate distinctions that may not be apparent at first read. in 53 comp. gen. 770 1974, a certifying',
8225:'officer for the small business administration sba asked gao to rule on the propriety of an expenditure for decorative ashtrays',
8226:'that were distributed to federal employee participants of a conference sponsored by that agency. by passing out ashtrays, the agency',
8227:'intended that they would generate conversation concerning the conference and thereby further sba’s objectives by serving as a reminder of',
8228:'the purposes of the conference. the decision held that the justification given by the agency was not sufficient because the',
8229:'recipients of the ashtrays were federal officials who were already charged by law to cooperate with the objectives of sba.',
8230:'thus, there was no necessity that ashtrays be given away. the ashtrays were properly designated as personal gifts. contrast the',
8231:'sba decision, however, with a 1993 veterans affairs decision. in b247563.2, may 12, 1993, gao approved the distribution by the',
8232:'department of veterans affairs va of imprinted book matches and imprinted jar grip openers at the oklahoma state fair for',
8233:'recruiting purposes and to provide veterans with a number to call to obtain information. va’s appropriation explicitly authorized it to',
8234:'create exhibits and other material to accomplish its mission. this case stated the general rule regarding the use of appropriated',
8235:'funds to purchase gifts: “under the ‘necessary expense rule,’ an agency may not purchase items in the nature of gifts',
8236:'or souvenirs unless there is a direct link between the items and the purpose of the appropriation charged. stated differently,',
8237:'in order to page 4156 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose justify purchasing novelty items or',
8238:'personal gifts with appropriated funds, an agency must demonstrate that the items will directly further its mission.” applying this rule',
8239:'to the va’s matches and jar openers, gao concluded that it was “entirely appropriate for the [va] to attempt to',
8240:'attract the attention of those attending the event,” and that the means chosen were “appropriate for the objective to be',
8241:'accomplished.” in this section, we provide a short discussion of decisions in which we concluded that the item at issue',
8242:'was a gift. we follow that with a discussion of decisions in which we found that items ordinarily considered to',
8243:'be gifts were connected to carrying out the agency’s mission. the discussion, of course, does not identify all of our',
8244:'gift decisions and, while we provide our holdings, the discussion does not substitute for a full analysis of these decisions.',
8245:'we encourage the reader to use the discussion as a tool for honing his or her research. in 54 comp.',
8246:'gen. 976 1975, specially made key chains, which were distributed to educators who attended seminars sponsored by the forest service,',
8247:'were determined to be personal gifts despite the department of agricultures claim that their distribution would generate future responses from',
8248:'participants. that decision stated: “the appropriation …proposed to be charged with payment for the items in question is available for',
8249:'‘…expenses necessary for forest protection and utilization….’ since the appropriation is not specifically available for giving key chains to individuals,',
8250:'in order to qualify as a legitimate expenditure it must be demonstrated that the acquisition and distribution of such items',
8251:'constituted a necessary expense of the forest service.” the decision concluded that the key chains were not necessary to implement',
8252:'the appropriation and were, therefore, improper expenditures. this line of reasoning was also used in 57 comp. gen. 385 1978.',
8253:'there it was held that novelty plastic garbage cans containing candy in the shape of solid waste, which were distributed',
8254:'by the environmental protection agency to attendees at an exposition, were personal gifts. the agency’s argument that the candy was',
8255:'used to attract people to its exhibit on the page 4157 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations:',
8256:'purpose resource conservation and recovery act and therefore to promote solid waste management was not sufficient to justify the expenditure.',
8257:'in b195247, aug. 29, 1979, the comptroller general held that an expenditure of appropriated funds for the cost of jackets',
8258:'and sweaters as holiday gifts to corpsmen at a job corps center with the intent of increasing morale and enhancing',
8259:'program support was unauthorized. it was determined that these were not a necessary and proper use of appropriated funds and',
8260:'therefore were personal gifts. the following cases are additional illustrations of expenditures that were found to be in the nature',
8261:'of personal gifts and therefore improper: tshirts stamped with combined federal campaign logo to be given to employees contributing a',
8262:'certain amount. 70 comp. gen. 248 1991. winter caps purchased by national oceanographic and atmospheric administration to be given to',
8263:'volunteer participants in weather observation program to create “esprit de corps” and enhance motivation. b201488, feb. 25, 1981. photographs taken',
8264:'at the dedication of the klondike gold rush visitor center to be sent by the national park service as “mementos”',
8265:'to persons attending the ceremony. b195896, oct. 22, 1979. “sun day” buttons procured by the general services administration gsa and',
8266:'given out to members of the public to show gsa’s support of certain energy policies. b192423, aug. 21, 1978. agricultural',
8267:'products developed in department of agriculture research programs gift boxes of convenience foods, leather products, paperweights of flowers imbedded in',
8268:'plastic to be given to foreign visitors and other official dignitaries. b151668, june 30, 1970. cuff links and bracelets to',
8269:'be given to foreign visitors by the commerce department to promote tourism to the united states. b151668, dec. 5, 1963;',
8270:'b151668, june 28, 1963 same case. baseball caps purchased by the department of energy to be given to nonemployees for',
8271:'personnel recruitment purposes. b260260, dec. 28, 1995. page 4158 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose pens,',
8272:'scissors, and shoe laces purchased by the then veterans administration va to be given to potential employees for recruiting purposes,',
8273:'which were nothing more than “favorable reminders of va” and did not facilitate va’s acquisition of information necessary to its',
8274:'recruiting efforts. b247563.3, apr. 5, 1996. gift certificates to local restaurants and silk plants distributed by the then veterans administration',
8275:'in celebration of women’s equality week, where there was no evidence of how these items advanced the agency’s celebration. id.',
8276:'in these cases, while we gave considerable weight to the agency’s administrative determination of necessity, it was not controlling. see,',
8277:'e.g., b151668, dec. 5, 1963. what follows is a discussion of some expenditures that resemble personal gifts, but which we',
8278:'approved because they were found necessary to carry out the purposes of the agency’s appropriation. for example, in b193769, jan.',
8279:'24, 1979, it was held that the purchase and distribution of pieces of lava rocks to visitors of the capulin',
8280:'mountain national monument was a necessary and proper use of the interior department’s appropriated funds. the appropriation in question was',
8281:'for “expenses necessary for the management, operation, and maintenance of areas and facilities administered by the national park service ….”',
8282:'the distribution of the rocks furthered the objectives of the appropriation because it was effective in preserving the monument by',
8283:'discouraging visitors from removing lava rock elsewhere in the monument. thus, the rocks were not considered to be personal gifts.',
8284:'similarly, gao concluded in b230062, dec. 22, 1988, that the army could use its appropriations to give away framed recruiting',
8285:'posters as “prizes” in drawings at national conventions of student organizations. the students had to fill out cards to enter',
8286:'the drawings, and the cards would provide leads for potential recruits. also, the army is authorized to advertise its recruitment',
8287:'program, and posters are a legitimate form of advertising. another case in which gao found adequate justification is 68 comp.',
8288:'gen. 583 1989, concluding that the u.s. mint may give complimentary specimens of commemorative coins and medals to customers whose',
8289:'orders have been mishandled. since customers who do not receive what they paid for may be disinclined to place further',
8290:'orders, the goodwill gesture of page 4159 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose giving complimentary copies',
8291:'to these customers would directly contribute to the success of the mint’s commemorative sales program. in another case involving buttons,',
8292:'72 comp. gen. 73 1992, gao responded to a request from the comptroller of the environmental protection agency for an',
8293:'opinion on the availability of appropriated funds to acquire buttons and magnets inscribed with messages related to indoor air quality,',
8294:'concluding that appropriated funds were available for such items. gao discussed and distinguished cases such as 53 comp. gen. 770',
8295:'sba decorative ashtrays and 54 comp. gen. 976 key chains for participants at forest service seminars, above, noting that the',
8296:'buttons and magnets, “unlike a container of candy, a key chain, or an ice scraper,” had “no real use other',
8297:'than to convey a message.” 72 comp. gen. at 74. also key was the “direct link between the items and',
8298:'an authorized agency function,” which involved conveying a message to increase public awareness of indoor air quality. id. in yet',
8299:'another “button” case, b257488, nov. 6, 1995, gao concluded that the food and drug administration could use appropriated funds to',
8300:'purchase “no red tape” buttons for employees to wear at work. gao noted that the buttons had “no intrinsic value”',
8301:'to the recipients and served solely to assist the achievement of agency objectives. the agency had demonstrated “the requisite nexus',
8302:'between its appropriation’s purpose and the ‘no red tape’ buttons. the message [was] clearly informational and directed at the promotion',
8303:'of an internal agency management objective.” in b280440, feb. 26, 1999, gao approved a plan by the immigration and naturalization',
8304:'service to purchase medals to be worn by uniformed employees of the border patrol to commemorate the border patrol’s 75th',
8305:'anniversary. citing the fda “no red tape” button case, b257488, above, gao noted first that the medals would not be',
8306:'gifts, but rather part of a border patrol agent’s uniform. additionally, gao observed that, “the medals convey as well as',
8307:'serve an institutional purpose—i.e., reminding the public and agency staff of the border patrol’s …history and mission and promoting the',
8308:'stability and longevity of the agency.” in a case involving gao’s own appropriations, gao cited several of the above cases',
8309:'in support of gao’s distribution of gaologo coffee mugs to new employees and highlighter pens and postit notes to potential',
8310:'recruits. b287241, aug. 21, 2001 nondecision letter. the mugs, pens, and note pads had all been imprinted with a new',
8311:'gao logo, “accountability, integrity and reliability,” and had already been supplied to current gao page 4160 gao04261sp appropriations law—vol. i',
8312:'chapter 4 availability of appropriations: purpose staff as part of a larger campaign to instill gao’s priorities. some items were',
8313:'provided to new employees as part of an orientation package to educate them in gao’s priorities. the pens and pads,',
8314:'along with other materials about gao, were provided to potential recruits to inform them of gao’s priorities. id. b. contests',
8315:'1 entry fees the comptroller general has held that payment of an entry fee to enter agency publications in a',
8316:'contest sponsored by a private organization is improper and cannot be justified as a necessary expense, at least where the',
8317:'prize is a monetary award to be given to the editors of the winning publications. b164467, june 14, 1968. however,',
8318:'payment of a contest entry fee may be permissible where the prize is awarded to the agency and not to',
8319:'the individuals and where there is sufficient justification that the expense will further the objects of the appropriation. b172556, dec.',
8320:'29, 1971. the comptroller general pointed out in that decision that whether appropriated funds may be used to enter a',
8321:'contest will depend on the nature of the contest, the nature of the prizes and to whom they are awarded,',
8322:'and the sufficiency of the administrative justification. thus, the bureau of mines could use its appropriations to enter an educational',
8323:'film it produced in an industrial film festival where entry was made in the bureau’s name, awards would be made',
8324:'to the bureau and not to any individuals, and there was adequate justification that entry would further the bureau’s function',
8325:'of promoting mine safety. b164467, aug. 9, 1971. in recent years, the issue of the use of appropriated funds to',
8326:'pay contest entry fees has come up in the context of athletic contests. see section c.5.e of this chapter, “recreational',
8327:'and welfare facilities for government personnel.” in each case, funds were found not to be available for the entry fee',
8328:'in question. see, e.g., 73 comp. gen. 169 1994 department of energy employees participating in competitive fitness promotion, team activities,',
8329:'and sporting events; b247563.3, apr. 5, 1996 department of veterans affairs payment of “sponsor fee” at a local “corporate challenge”',
8330:'in which employees participated; b262008, oct. 23, 1996 army corps of engineers employees participating in a “corporate cup run” sponsored',
8331:'by the american lung association. page 4161 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose 2 governmentsponsored contests',
8332:'in an early case, the navy wanted to use its appropriation for naval aviation to sponsor a competition for the',
8333:'design of amphibious landing gear for navy aircraft. cash prizes would be awarded for the two most successful designs. the',
8334:'comptroller general ruled, however, that the proposed expenditure was unauthorized because the prizes were not related to the reasonable value',
8335:'of the services of the successful contestants and because the appropriation contemplated that the design and development work would be',
8336:'performed by navy personnel. 5 comp. gen. 640 1926. see also b247563.3, apr. 5, 1996 department of veterans affairs purchase',
8337:'of restaurant gift certificates and a silk plant “for distribution as prizes during women’s equality week” not permissible. while 5',
8338:'comp. gen. 640 may be said to express a general rule, later decisions have permitted agencies to, in effect, sponsor',
8339:'contests and competitions where artistic design was involved. thus, in a13559, apr. 5, 1926, the arlington memorial bridge commission wanted',
8340:'to invite several firms to submit designs for a portion of the arlington memorial bridge. each design accepted by the',
8341:'commission would be purchased for $2,000, estimated to approximate the reasonable cost of preparing a design. since the $2,000 was',
8342:'reasonably related to the cost of producing a design, gao viewed the proposal as amounting to a direct purchase of',
8343:'the satisfactory designs and distinguished 5 comp. gen. 640 on that basis. a significant factor was that the bridge was',
8344:'intended not merely as a functional device to cross the river but “as a memorial in which artistic features are',
8345:'a major, if not the primary, consideration.” this decision was followed in 9 comp. gen. 63 1929, holding that the',
8346:'marine corps could offer a set sum of $1,000 for an acceptable original design for a service medal. the comptroller',
8347:'general stated: “competition in the purchase of supplies or articles for government use in its most common form is for',
8348:'the purpose of securing specified supplies or articles at the lowest possible price. where, however, the purpose is the selection',
8349:'of the most suitable and artistic design …, the primary value of the subject being in its design, the ordinary',
8350:'procedure may be reversed and the amount to be expended fixed in advance at a sum considered to be the',
8351:'reasonable value of the services solicited and the bidders requested to submit the best design which they can furnish for',
8352:'that sum.” page 4162 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose id. at 65. the concept of',
8353:'a13559 was followed and applied in several later decisions. see 19 comp. gen. 287, 288 1939 design of advertising literature',
8354:'for savings bonds; 18 comp. gen. 862 1939 plaster models for thomas jefferson memorial; 14 comp. gen. 852 1935 bronze',
8355:'tablets and memorials for boulder dam; a37686, aug. 1, 1931 monument at harrodsburg, kentucky, as first permanent settlement west of',
8356:'the allegheny mountains; a35929, apr. 3, 1931 ornamental sculptured granite columns for the arlington memorial bridge. thus, a prize competition',
8357:'per se is generally unauthorized in accordance with 5 comp. gen. 640. however, the procedure in a13559 and its progeny',
8358:'is permissible where artistic features are the major consideration, and the amount awarded is related to the reasonable cost of',
8359:'producing the design. apart from the artistic design line of cases, an agency may be authorized to sponsor a contest',
8360:'under the necessary expense theory, if the expenditure bears a reasonable relationship to carrying out some authorized activity. for example,',
8361:'in b158831, june 8, 1966, prizes were awarded to enrollees at a job corps conservation center in a contest to',
8362:'suggest a name for the center newspaper. gao held the expenditure permissible because the enabling legislation authorized the providing of',
8363:'“recreational services” for the enrollees, and the contest was viewed as a permissible exercise of administrative discretion in implementing the',
8364:'statutory objective. in another case, the national park service sponsored a crosscountry ski race in a national park and awarded',
8365:'trophies to the winners. the cost of the trophies could not be charged to appropriations for management, operation, and maintenance',
8366:'of the national park system. however, the park service also received appropriations for recreational programs in national parks, and the',
8367:'trophies could properly have been charged to that account. b214833, aug. 22, 1984. see also b230062, dec. 22, 1988. gao',
8368:'concluded in 70 comp. gen. 720 1991 that the national oceanic and atmospheric administration noaa could pay cash prizes to',
8369:'certain fortunate fisherman returning “fish tags” to the government. the national marine fisheries service issued such “fish tags,” displaying questions',
8370:'about the circumstances under which the fish in question was caught, a return address, and the word “reward.” when returned',
8371:'by fishermen, the fish tags provided information on the history and migration rates of the tagged fish. the fishermen were',
8372:'paid a reward of $5.00 for the return of each fish tag. page 4163 gao04261sp appropriations law—vol. i chapter 4',
8373:'availability of appropriations: purpose gao concluded that the agency was “statutorily required to conduct research supporting fishery management” and therefore',
8374:'was required to “obtain information from the public.” since the fish tag awards facilitated acquisition of the needed information, the',
8375:'cost of the awards was reasonably necessary to the agency’s accomplishment of an authorized purpose. id. at 722. in this',
8376:'decision, gao also considered an noaa proposal to expand its reward program to include the alternative of participating in an',
8377:'annual drawing for a limited number of large cash prizes. this alternative was also approved. id. at 723. in b286536,',
8378:'nov. 17, 2000, gao considered a proposal by the general services administration’s public buildings service pbs to use appropriated funds',
8379:'to pay for prizes in a drawing held in connection with customer satisfaction surveys. in order to develop customer satisfaction',
8380:'information, pbs distributed such customer surveys to employees of tenantagencies in buildings it managed. pbs proposed the use of the',
8381:'federal buildings fund to provide prizes to survey recipients whose names pbs chose in a drawing. citing 70 comp. gen.',
8382:'720 and b230062, above, gao observed that it had concluded in several instances that “agencies may use appropriated funds to',
8383:'provide prizes to individuals to further the collection of information necessary to the accomplishment of the agency’s statutory mandate.” this',
8384:'case differed in that pbs proposed to make awards to federal employees, rather than to the general public as in',
8385:'the cited cases. this was not determinative, however, since the federal employees would not be receiving prizes for what they',
8386:'already were required to do, and therefore they were “akin to the general public.” there was “a direct connection between',
8387:'the purpose of the fund and the use of prizes to increase the response rate to customer satisfaction surveys.” therefore,',
8388:'gao had no objection to pbs’s use of the federal buildings fund for this purpose. c. awards a number of',
8389:'early decisions established the proposition that, absent specific statutory authority, appropriations could not be used to purchase such items as',
8390:'medals, trophies, or insignia for the purpose of making awards. the rationale follows that of the gift cases. the prohibition',
8391:'was applied in 5 comp. gen. 344 1925 medals for winners of athletic events and 15 comp. gen. 278 1935',
8392:'annual trophies for naval reserve bases for efficiency. in 10 comp. gen. 453 1931, the comptroller general held that a',
8393:'general appropriation could be used to design and procure medals of honor for air mail flyers where the awarding of',
8394:'the medals had been authorized in virtually concurrent legislation. the general appropriation was viewed as available to carry out the',
8395:'specifically expressed intent of page 4164 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose congress and the express',
8396:'authorization obviated any need for a more specific appropriation. the rule was restated in 45 comp. gen. 199 1965 and',
8397:'viewed as prohibiting the purchase of a plaque to present to a state to recognize 50 years of achievement in',
8398:'forestry. while the voucher in that case was paid because the plaque had already been presented, the decision stated that',
8399:'payment was for that instance only and that congressional authority should be sought if similar awards were considered desirable in',
8400:'the future. a more recent case applying the prohibition is b223447, oct. 10, 1986. as with the gift cases, an',
8401:'occasional exception will be found based on an adequate justification under the necessary expense doctrine. one example, prompted perhaps by',
8402:'wartime considerations, is b31094, jan. 11, 1943, approving the purchase of medals or other inexpensive insignia but not cash payments',
8403:'to be awarded to civil defense volunteers for heroism or distinguished service. similarly, the comptroller general held in 17 comp.',
8404:'gen. 674 1938 that an appropriation, one of whose purposes was “accident prevention,” was available to purchase medals and insignia',
8405:'but not to make monetary awards to recognize mail truck drivers with safe driving records. there was sufficient discretion under',
8406:'the appropriation to determine the forms “accident prevention” should take. however, the discretion in recognizing safe job performance does not',
8407:'extend to distributing “awards” of merchandise selected from a catalogue. b223608, dec. 19, 1988.100 the same decision disapproved the distribution',
8408:'of ice scrapers imprinted with a safety message, based on the lack of adequate justification. the prohibition does not apply',
8409:'to a government corporation with the authority to determine the character and necessity of its expenditures. 64 comp. gen. 124',
8410:'1984. the expenditure in the case cited was to be made from donated funds. several statutes now authorize the making',
8411:'of awards in various contexts. perhaps the most important is the government employees’ incentive 100 merchandise in that case was',
8412:'distributed to more than 80 percent of the workforce at one project. page 4165 gao04261sp appropriations law—vol. i chapter 4',
8413:'availability of appropriations: purpose awards act, enacted in 1954 101and now found at 5 u.s.c. §§ 4501–4506. the act authorizes',
8414:'an agency to pay a cash award to an employee who by his or her “suggestion, invention, superior accomplishment, or',
8415:'other personal effort contributes to the efficiency, economy, or other improvement of government operations or achieves a significant reduction in',
8416:'paper work” or performs a special act or service in the public interest related to his or her official employment.',
8417:'5 u.s.c. § 4503. the agency may also incur “necessary expenses” in connection with an incentive award. id. awards and',
8418:'related expenses under the act are paid from appropriations available to the activity or activities benefited. the office of personnel',
8419:'management is authorized to prescribe implementing regulations. 5 u.s.c. § 4506. opm’s regulations are found in 5 c.f.r. pt. 451.',
8420:'see also awards, department of defense civilian personnel manual, dod 1400.25m, subchapter 451 dec. 1996. a provision added in 1990,',
8421:'5 u.s.c. § 4505a, authorizes cash awards for employees with fully successful performance ratings.102 the incentive awards act applies to',
8422:'civilian agencies, civilian employees of the various armed services, the district of columbia government, and specified legislative branch agencies. 5',
8423:'u.s.c. § 4501. within the judicial branch, it applies to the united states sentencing commission. id.103 while it does not',
8424:'apply to members of the armed forces, the defense department has very similar authority for military personnel in 10 u.s.c.',
8425:'§ 1124. gao has issued a number of decisions interpreting the government employees’ incentive awards act. thus, where an award',
8426:'is based on a suggestion resulting in monetary savings, the savings must be to government rather than nongovernment funds. 36',
8427:'comp. gen. 822 1957. applying this principle, gao found that a suggestion for changes in 101 68 stat. 1112. this',
8428:'was an expansion of similar but more limited authority enacted in 1946 60 stat. 809. gao reviewed the acts effectiveness',
8429:'in u.s. general accounting office, federal workforce: federal suggestion programs could be enhanced, gao/ggd8971 washington, d.c.: aug. 1989. 102 section',
8430:'207 of the federal employees pay comparability act of 1990 fepca, contained in section 529 of the fiscal year 1991',
8431:'treasury, postal service, and general government appropriation act, pub. l. no. 101509, 104 stat. 1389, 1457 nov. 5, 1990. the',
8432:'authority is effective only to the extent funds are provided in appropriation acts. fepca § 301, 104 stat. 1461. 103',
8433:'the sentencing commission had not been covered prior to a 1988 amendment to the statute. see 66 comp. gen. 650',
8434:'1987. the administrative office of the united states courts is no longer covered by the statute. pub. l. no. 101474,',
8435:'§ 5f, 104 stat. 1100 oct. 30, 1990. page 4166 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose',
8436:'procedures that would decrease administrative expenses of state employment security offices would effect a savings to an appropriation for unemployment',
8437:'service administration grants to the states. therefore, the appropriation was available to make an award to the employee who made',
8438:'the suggestion. 38 comp. gen. 815 1959. an agency may make an award to an employee on detail from another',
8439:'agency. 33 comp. gen. 577 1954. an agency may also make an award to one of its employees for service',
8440:'to a federal executive board. b240316, mar. 15, 1991. see also 70 comp. gen. 16 1990. an interesting situation occurred',
8441:'in b192334, sept. 28, 1978. there, an employee made a suggestion that resulted in monetary savings to his own agency,',
8442:'but the savings would be offset by increased costs to other agencies. the decision concluded that, if the agency wanted',
8443:'to make an award on the basis of tangible benefits, it must measure tangible benefits to the government, that is,',
8444:'it must deduct the increased costs to other agencies from its own savings. however, the agency could view the suggestion',
8445:'as a contribution to efficiency or improved operations and make a monetary award based on intangible benefits. as noted, the',
8446:'act authorizes an agency to incur“necessary expenses” incident to its awards program. thus, an agency may pay travel and miscellaneous',
8447:'expenses to bring recipients to washington d.c. to participate in award ceremonies. 70 comp. gen. 440 1991. these expenses are',
8448:'not chargeable against the statutory award ceiling. 32 comp. gen. 134 1952. the agency may also pay travel expenses for',
8449:'the recipients spouse. 69 comp. gen. 38 1989, overruling 54 comp. gen. 1054 1975; b235163.11, feb. 13, 1996. travel and',
8450:'miscellaneous expenses may also be paid to a surviving spouse to receive an award on behalf of a deceased recipient.',
8451:'b111642, may 31, 1957. where a recipient has a disability and cannot travel unattended, the travel and miscellaneous expenses of',
8452:'an attendant, whether or not a family member, may be paid. 55 comp. gen. 800 1976. the act does not',
8453:'authorize “necessary expenses” incident to the receipt of an award from a nonfederal organization. 40 comp. gen. 706 1961. see,',
8454:'e.g., b258216, july 27, 1995 agency’s payment for airline tickets for mother and brother of a deceased employee to attend',
8455:'nongovernmental awards ceremony honoring deceased employee not authorized. however, in limited situations where an award from a nonfederal organization is',
8456:'closely related to the recipients official duties, it may be possible to pay certain related expenses on other grounds. see',
8457:'55 comp. gen. 1332 1976. page 4167 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose as previously discussed',
8458:'in our section on entertainment, the comptroller general has held that the “necessary expense” language of the government employees’ incentive',
8459:'awards act may include refreshments at an agency’s awards ceremony. 65 comp. gen. 738 1986. see also b167835, nov. 18,',
8460:'1969. a 1990 decision applied the rationale of 65 comp. gen. 738 and held that an agency could pay a',
8461:'fee, which included a luncheon, for attendance at a federal executive board regional award ceremony by agency employees who had',
8462:'been selected for awards and their supervisors. 70 comp. gen. 16 1990. see also b288536, nov. 19, 2001 buffetstyle luncheon',
8463:'provided bureau of indian affairs bia employees attending awards ceremony; b270199, aug. 6, 1996 cake at a pension benefit guaranty',
8464:'corporation awards ceremony; b235163.11, feb. 13, 1996 national science foundation annual awards dinner. in b247563.4, dec. 11, 1996, however, the',
8465:'comptroller general ruled that the government employees’ incentive awards act does not authorize refreshments “in connection with an event or',
8466:'function designed to achieve other objectives simply because the agency distributes awards as part of the event or function.” the',
8467:'purpose of authorized refreshments is to “facilitate public recognition of awards recipients” and this purpose would not be served where,',
8468:'as in this case, the awards recipients and the donor were the only participants in the event. gao explored the',
8469:'range of agency discretion in providing refreshments in connection with awards ceremonies in b270327, mar. 12, 1997. this case arose',
8470:'when the defense reutilization and marketing service drms, in recognition of excellent agency performance, designated a worldwide “celebration day,” on',
8471:'which it hosted luncheons for all drms employees and provided each employee a specially designed “bucks bunny” and “reut rabbit”',
8472:'tshirt, as well as 4 hours of administrative leave. drms guidance authorized each drms location to spend up to $20',
8473:'per person for accommodations and “incidental refreshments” in connection with the awards ceremonies. gao considered the drms awards program in',
8474:'light of opm’s regulations implementing the incentive awards act at 5 c.f.r. pt. 451, which, the decision concluded, “purposely leave',
8475:'it up to the agencies to design their award programs and make their own award decisions.” gao concluded that it',
8476:'was required to “respect and defer” to opm’s regulatory decisions and implicit delegation of authority to agencies to make implementing',
8477:'decisions so long as such decisions were consistent with essential requirements of the act. although gao observed that the coverage',
8478:'of the “celebration day” was “broader than [it had] typically encountered in … prior decisions,” it concluded that “unless arbitrary',
8479:'and page 4168 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose capricious, differences in degree do not invalidate',
8480:'the decisions made.” the submitted vouchers were approved. see also b288536, supra bia buffet. awards under the act may take',
8481:'forms other than cash. thus, in 55 comp. gen. 346 1975, the comptroller general held that the army criminal investigation',
8482:'command could award marble paperweights and walnut plaques to command employees, including those who had died in the line of',
8483:'duty, if the awards conformed to the act and applicable regulations. in situations not covered by the statute e.g., presentations',
8484:'to nongovernment persons to recognize cooperation and enhance community relations, however, such awards would be personal gifts and therefore improper.',
8485:'similarly authorized as “honorary” awards are desk medallions b184306, aug. 27, 1980; telephones of nominal value 67 comp. gen. 349',
8486:'1988; $50 jackets bearing agency insignia b243025, may 2, 1991; coffee mugs and pens b257488, nov. 6, 1995; tickets to',
8487:'local sporting events or amusement parks b256399, june 27, 1994; and meals or gift certificates for meals b271511, mar. 4,',
8488:'1997. administrative leave can also be awarded if and to the extent authorized in office of personnel managements opm implementing',
8489:'regulations. 5 u.s.c. § 4502e2.104 see also b208766, dec. 7, 1982. whether the award is monetary or nonmonetary, the act',
8490:'or service prompting it must be related to official employment. 70 comp. gen. 248 1991 the government employees’ incentive awards',
8491:'act does not authorize giving tshirts to combined federal campaign contributors. see also 71 comp. gen. 145 1992 contractor in',
8492:'70 comp. gen. 248 not entitled to payment for shirts provided to government. the act does not authorize cash awards',
8493:'based merely on length of service or upon retirement. however, honorary noncash awards are permissible. for example, the department of',
8494:'agriculture wanted to present to retiring members of its office of inspector general engraved plastic holders containing their credentials. gao',
8495:'found this authorized by the act. 46 comp. gen. 662 1967. the use of incentive awards for good sick leave',
8496:'records is inappropriate. 67 comp. gen. 349 1988, cited in national association of government employees local r1109, 53 f.l.r.a. 271,',
8497:'aug. 15, 1997. the making of an award—and therefore the refusal to make an award— under the government employees’ incentive',
8498:'awards act is discretionary. 104 added by fepca, supra, § 201, 104 stat. at 1455. page 4169 gao04261sp appropriations law—vol.',
8499:'i chapter 4 availability of appropriations: purpose rosano v. united states, 9 cl. ct. 137, 144–45 1985, aff’d, 800 f.2d',
8500:'1126 fed. cir. 1986, cert. denied, 480 u.s. 907 1987. as such, it is reviewable only for abuse of discretion.',
8501:'e.g., shaller v. united states, 202 ct. cl. 571, cert. denied, 414 u.s. 1092 1973. a labor relations arbitrator may',
8502:'order an agency to prepare and submit an award recommendation, but cannot order the agency to actually make the award.',
8503:'56 comp. gen. 57 1976. in b202039, apr. 3, 1981, aff’d upon reconsideration, b202039, may 7, 1982, two employees filed',
8504:'a claim where their agency had given them a cash award several years after implementing their suggestion. they claimed interest',
8505:'on the award, lost imputed investment earnings, an inflation adjustment, and compensation for higher income taxes paid as a result',
8506:'of the delay. the claim was denied. in the may 1982 decision, gao pointed out that an agency’s own regulations',
8507:'can have the effect of limiting the discretion it would otherwise have under the statute. see also griffin v. united',
8508:'states, 215 ct. cl. 710 1978. thus, agency regulations can commit the agency to making an award if it adopts',
8509:'a suggestion. however, this does not create an entitlement to interest. finally, the government employees’ incentive awards act is limited',
8510:'to government employees. since no similar authority exists for persons other than government employees, an award may not be made',
8511:'to a nongovernment employee who submits a suggestion resulting in savings to the government. b160419, july 28, 1967. the limitation',
8512:'to government employees is also noted in two internal gao memoranda. b224071o.m., aug. 3, 1987 gao appropriations not available for',
8513:'cash awards to contract security guards; b176600o.m., aug. 18, 1978 appropriations of agencies funding the joint financial management improvement program',
8514:'not available to make cash awards to other than federal employees. in addition to the government employees’ incentive awards act,',
8515:'several other statutes authorize various types of awards. some examples are: 5 u.s.c. § 5384: authorizes lumpsum cash performance awards',
8516:'to members of the senior executive service. some representative decisions are 68 comp. gen. 337 1989, 64 comp. gen. 114',
8517:'1984, and 62 comp. gen. 675 1983. 10 u.s.c. § 1125 and 14 u.s.c. § 503: authorize the defense department',
8518:'and the coast guard, respectively, to award trophies and badges for certain accomplishments. see 71 comp. gen. 346 1992 air',
8519:'force purchase of belt buckles as awards for participants in “peacekeeper page 4170 gao04261sp appropriations law—vol. i chapter 4 availability',
8520:'of appropriations: purpose challenge” competition permissible under 10 u.s.c. § 1125. the coast guard statute includes cash prizes. the statutes',
8521:'have been narrowly construed as limited essentially to proficiency in arms and related skills. 68 comp. gen. 343 1989 coast',
8522:'guard; 27 comp. gen. 637 1948 discussing predecessor of 10 u.s.c. § 1125. 5 u.s.c. §§ 4511–4513: inspector general of',
8523:'an agency may make cash awards to employees whose disclosure of fraud, waste, or mismanagement results in cost savings for',
8524:'the agency. for an agency without an inspector general, the agency head is to designate an official to make the',
8525:'awards. the president may make the awards where the cost savings accrue to the government as a whole. gao reviews',
8526:'under this legislation indicate that the authority has been used sparingly, but that actual or projected cost savings appear reasonable',
8527:'in those cases where awards have been made.105 9. guard services: anti pinkerton act a. evolution of the law prior',
8528:'to 57 comp. gen. 524 on july 6, 1892, in homestead, pennsylvania, a riot occurred between striking employees of the',
8529:'carnegie, phipps & company steel mill and approximately 200 pinkerton guards. the company had brought in the pinkerton force ostensibly',
8530:'to protect company property. as the pinkertons were being transported down the monongahela river, the strikers sighted them and began',
8531:'firing on them. the strikers were heavily armed, and even had a cannon on the riverbank. the violence escalated to',
8532:'the point where the strikers spread oil on the water and ignited it. several of the pinkerton men were killed',
8533:'and several of the strikers were indicted for murder. the riot received national attention. the thencommon practice of employing armed',
8534:'pinkerton guards as strikebreakers in labor disputes became an emotionally charged issue. the homestead riot, together with other similar although',
8535:'less dramatic incidents, made it clear that the use of these guards provoked violence. although congress was reluctant to legislate',
8536:'against their use in the private 105 u.s. general accounting office, federal workforce: low activity in awards program for cost',
8537:'savings disclosures, gao/ggd8822 washington, d.c.: dec. 18, 1987; executive agencies employee cash awards program for disclosure of fraud, waste, or',
8538:'mismanagement, gao/ggd8474 washington, d.c.: may 8, 1984. page 4171 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose sector,',
8539:'some congressional action became inevitable. the result was the law that came to be known as the antipinkerton act. originally',
8540:'enacted as part of the sundry civil appropriation act of august 5, 1892, 27 stat. 368, it was made permanent',
8541:'the following year by the act of march 3, 1893, ch. 208, 27 stat. 591. now found at 5 u.s.c.',
8542:'§ 3108, the act provides: “an individual employed by the pinkerton detective agency, or similar organization, may not be employed',
8543:'by the government of the united states or the government of the district of columbia.” as we will see, the',
8544:'statute has little impact today. nevertheless, it remains on the books and could become relevant, albeit only in unusual circumstances.',
8545:'therefore, it may be useful to briefly record the administrative interpretations of the law. although the antipinkerton act was never',
8546:'the subject of any judicial decisions until the late 1970s, it was the subject of numerous decisions of the comptroller',
8547:'general and the comptroller of the treasury. several principles evolved through the decisions. 1. the act applies to contracts with',
8548:'“detective agencies” as firms or corporations as well as to contracts with or appointments of individual employees of such agencies.',
8549:'8 comp. gen. 89 1928; a12194, feb. 23, 1926. 2. the act prohibits the employment of a detective agency or',
8550:'its employees, regardless of the character of the services to be performed. the fact that such services are not to',
8551:'be of a “detective” nature is immaterial. thus, detectives or detective agencies within the scope of the act may not',
8552:'be employed in any capacity. 51 comp. gen. 494 1972; 26 comp. gen. 303 1946. 3. the statutory prohibition applies',
8553:'only to direct employment. it does not extend to subcontracts entered into with independent contractors of the united states. 26',
8554:'comp. gen. 303. the legislative history of the original 1892 statute made it clear that congress did not intend to',
8555:'reach subcontracts. however, the act does apply to a contract under the small business administration sba setaside program since the',
8556:'contract is a prime contract visàvis sba even though it may be a subcontract visàvis the actual employing agency. 55',
8557:'comp. gen. 1472 1976. page 4172 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose 4. although the comptroller',
8558:'general never defined “detective agency” for purposes of the antipinkerton act, the decisions drew a distinction between detective agencies and',
8559:'protective agencies and held that the act did not forbid contracts with the latter. 38 comp. gen. 881 1959; 26',
8560:'comp. gen. 303 1946; b32894, mar. 29, 1943. thus, the government could employ a protective agency, but could not employ',
8561:'a detective agency to do protective work. an important test became whether the organization was empowered to do general investigative',
8562:'work. 5. in determining whether a given firm is within the statutory prohibition, gao considers the nature of the functions',
8563:'it may perform as well as the functions it in fact performs. two factors are relevant here—the firm’s authority under',
8564:'its corporate charter and its powers under licensing arrangements in the states in which it does business. if a firm',
8565:'is chartered as a detective agency and licensed as a detective agency, then the fact that it does not actually',
8566:'engage in detective work will not permit it to escape the statutory prohibition. since virtually every corporation inserts in its',
8567:'charter an “omnibus” clause “engage in any lawful act or activity for which corporations may be organized in this state”',
8568:'or similar language, an omnibus clause alone will not make a company a detective agency. rather, specific charter authorization is',
8569:'needed. 41 comp. gen. 819 1962; b146293, july 14, 1961. 6. the government may employ a wholly owned subsidiary of',
8570:'a detective agency if the subsidiary itself is not a detective agency, even if the subsidiary was organized primarily or',
8571:'solely to avoid the anti pinkerton act. as long as there is prima facie separation of corporate affairs, the act',
8572:'does not compel the government to “pierce the corporate veil.” 44 comp. gen. 564 1965; 41 comp. gen. 819 1962;',
8573:'b167723, sept. 12, 1969. 7. a telephone listing alone is not sufficient evidence that a given firm is a “detective',
8574:'agency” for purposes of 5 u.s.c. § 3108, although the fact of such a listing should prompt further inquiry by',
8575:'the procuring agency. 55 comp. gen. 1472 1976; b181684, mar. 17, 1975; b1763071, mar. 21, 1973; b177137, feb. 12, 1973.',
8576:'8. corrections to charters and licenses may be made prior to contract award to avoid antipinkerton act violations. postaward corrections,',
8577:'while perhaps relevant to future procurements, do not, absent compelling circumstances, retroactively expunge ineligibility existing at page 4173 gao04261sp appropriations',
8578:'law—vol. i chapter 4 availability of appropriations: purpose b. 57 comp. gen. 524 and the present state of the law',
8579:'the time of the award. 56 comp. gen. 225 1977; b172587, june 21, 1971; b161770, nov. 21, 1967; b160538, nov.',
8580:'15, 1967; b156424, july 22, 1965. these principles were discussed and applied in many decisions over the years. for example,',
8581:'a contract for guard services was found to violate the act where the contractor was expressly chartered and licensed as',
8582:'a detective agency. 55 comp. gen. 1472, aff’d upon reconsideration, 56 comp. gen. 225. similarly, a contract with a sole',
8583:'proprietorship was invalid where the owner was also the president of a corporation chartered and licensed as a detective agency.',
8584:'b186347, b185495, oct. 14, 1976, aff’d upon reconsideration, b186347, b185495, mar. 7, 1977. by the 1970s, the antipinkerton act had',
8585:'become a hindrance to the government’s guard service contracting activities. the federal government is a major consumer of guard services,',
8586:'and it was the rare solicitation that did not generate a squabble over who was or was not subject to',
8587:'the act. many companies, including pinkerton itself, were forced to form subsidiaries in order to compete for government business. the',
8588:'first reported judicial decision dealing with the antipinkerton act was united states ex rel. weinberger v. equifax, 557 f.2d 456',
8589:'5th cir. 1977, cert. denied, 434 u.s. 1035 1978. the issue in that case was whether the act applied to',
8590:'a credit reporting company. the comptroller general, in b139965, jan. 10, 1975, had already held that it did not. the',
8591:'court reached the same result, although on different reasoning. relying heavily on the act’s legislative history, the court held: “in',
8592:'light of the purpose of the act and its legislative history, we conclude that an organization is not ‘similar’ to',
8593:'the quondam pinkerton detective agency unless it offers quasimilitary armed forces for hire.” 557 f.2d at 463. in a june',
8594:'1978 circular letter to department and agency heads, published at 57 comp. gen. 524 1978, the comptroller general announced that',
8595:'gao would follow the equifax interpretation in the future. therefore, the statutory prohibition will now be applied only if an',
8596:'organization can be said to offer quasimilitary armed forces for hire. the comptroller general declined, as did the fifth circuit,',
8597:'to attempt a definition of a quasimilitary armed force but noted that, whatever it might mean, “it seems clear that',
8598:'a page 4174 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose company which provides guard or protective services',
8599:'does not thereby become a ‘quasimilitary armed force,’ even if the individual guards are armed.” 57 comp. gen. at 525.',
8600:'it follows that whether that company also provides investigative or detective services is no longer relevant. the first decision applying',
8601:'this new standard was 57 comp. gen. 480 1978. prior to the equifax decision, gao had gone on record as',
8602:'favoring repeal of the antipinkerton act. see, e.g., 56 comp. gen. 225, 230 1977. in light of the equifax case',
8603:'and 57 comp. gen. 524, the case for repeal is considerably lessened. the statute is no longer a major impediment',
8604:'to legitimate guard service contracting, and certainly most would agree that the government should not deal with an organization that',
8605:'offers quasi military armed forces for hire. with the issuance of 57 comp. gen. 524 and 57 comp. gen. 480,',
8606:'gao reviewed the prior decisions under the antipinkerton act and designated them as either overruled or modified. if the result',
8607:'in the earlier case would have remained the same under the new standard, the decision was only “modified.” if the',
8608:'new standard would have produced a different result, the earlier decision was “overruled.” this is important because 57 comp. gen.',
8609:'524 did not simply throw out all of the old rules. what it did is eliminate the “protective versus investigative”',
8610:'distinction and adopt the equifax standard as the definition of a proscribed entity. thus, an organization will no longer violate',
8611:'the act by providing general investigative services; it will violate the act only if it “offers quasimilitary armed forces for',
8612:'hire.” 57 comp. gen. at 525. if a given organization were found to offer quasimilitary armed forces for hire—an event',
8613:'that is viewed as unlikely although not impossible—the rules in the earlier decisions would still be applicable even though the',
8614:'decisions themselves have been technically overruled or modified. thus, the pre1978 principles set forth previously in this discussion remain applicable,',
8615:'but the focal point is now whether the organization in question offers quasimilitary armed forces for hire, not merely whether',
8616:'it provides general detective or investigative services. for purposes of guard service contracting, the burden of proof rests with the',
8617:'party alleging the violation. e.g., b216534, jan. 22, 1985. 10. insurance a. the selfinsurance rule one frequently hears that the',
8618:'government is a selfinsurer. this is not completely true. there are many situations in which the government buys page 4175',
8619:'gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose or pays for insurance. among the more wellknown examples are',
8620:'the federal employees’ health benefits program and federal employees’ group life insurance. as another example, the federal government is required',
8621:'by statute to pay half of the costs incurred by “qualified employees” for professional liability insurance. see pub. l. no.',
8622:'10658, title vi, § 642a, 113 stat. 430, 477 sept. 29, 1999, and discussion later in this chapter in section',
8623:'c.13.j; b300866, may 30, 2003. also, the government frequently pays for insurance indirectly through contracts, grants, and leases. e.g., b72120,',
8624:'jan. 14, 1948 lease. a comprehensive treatment may be found in a report of the comptroller general. u.s. general accounting',
8625:'office, survey of the application of the government’s policy on self insurance, b168106 washington, d.c.: june 14, 1972. another useful',
8626:'report, although more limited in scope, is u.s. general accounting office, extending the government’s policy of selfinsurance in certain instances',
8627:'could result in great savings, psad75105 washington, d.c.: aug. 26, 1975. however, the government is essentially a selfinsurer in certain',
8628:'important areas, primarily loss or damage to government property and the liability of government employees insofar as the government is',
8629:'legally responsible or would ultimately bear the loss. the rule to be discussed in this section may be stated thus:',
8630:'in the absence of express statutory authority to the contrary, appropriated funds are not available for the purchase of insurance',
8631:'to cover loss or damage to government property or the liability of government employees. the rationale for the rule is',
8632:'aptly summarized in the following two passages from early decisions: “the basic principle of fire, tornado, or other similar insurance',
8633:'is the lessening of the burden of individual losses by wider distribution thereof, and it is difficult to conceive of',
8634:'a person, corporation, or legal entity better prepared to carry insurance or sustain a loss than the united states government.”',
8635:'19 comp. gen. 798, 800 1940. “the magnitude of [the government’s] resources obviously makes it more advantageous for the government',
8636:'to carry its own risks than to shift them to private insurers at rates sufficient to cover all losses, to',
8637:'pay their operating page 4176 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose expenses, including agency or broker’s',
8638:'commissions, and to leave such insurers a profit.” 19 comp. gen. 211, 214 1939. the rule and its evolution are',
8639:'also summarized in b158766, feb. 3, 1977. the “selfinsurance rule” dates back to the nineteenth century and has been stated',
8640:'and applied in numerous decisions of the comptroller general and the comptroller of the treasury. in one early decision, 13',
8641:'comp. dec. 779 1907, the question was whether an appropriation for the education of natives in alaska could be used',
8642:'to buy insurance to cover desks en route to alaska which had been purchased from that appropriation. the comptroller of',
8643:'the treasury held that the insurance could not be considered a necessary expense incident to accomplishing the purpose of the',
8644:'appropriation unless it somehow operated either to preserve and maintain the property for use or to preserve the appropriation that',
8645:'was used to buy it. it did not do the first because insurance does not provide any added means to',
8646:'actually protect the property life insurance does not keep you alive but merely transfers the risk of loss. neither could',
8647:'it “preserve the appropriation” because any recoveries would have to be deposited into the general fund miscellaneous receipts of the',
8648:'treasury. therefore the appropriation was not available to purchase the insurance. the following year, the comptroller held that appropriations for',
8649:'the construction and maintenance of target ranges for the national guard then called “organized militias” could not be used to',
8650:'insure buildings acquired for use in target practice. 14 comp. dec. 836 1908. the decision closely followed the reasoning of',
8651:'13 comp. dec. 779—the insurance would not actually protect the property from loss nor would it preserve the appropriation because',
8652:'any proceeds could not be retained by the agency but would have to be paid into the treasury. thus, the',
8653:'object of the appropriation “can be as readily accomplished without insurance as with it.” 14 comp. dec. at 840. citing',
8654:'these and several other decisions, the comptroller held similarly in 23 comp. dec. 269 1916 that an appropriation for the',
8655:'construction and operation of a railroad in alaska was not available to pay premiums for insurance on buildings constructed as',
8656:'part of the project. a slightly different situation was presented in 24 comp. dec. 569 1918. the lincoln farm association',
8657:'had donated to the united states a memorial page 4177 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose',
8658:'hall enclosing the log cabin in which abraham lincoln was born, together with a $50,000 endowment fund to preserve and',
8659:'maintain the property. the question was whether the fund could be used to buy fire insurance on the property. the',
8660:'comptroller noted that the funds were not appropriated funds in the strict sense, but were nevertheless “government funds” in that',
8661:'legal title was in the united states. therefore, the selfinsurance rule applied. recalling the reasoning of the earlier decisions, the',
8662:'comptroller apparently could not resist commenting “[i]t should be remembered that fire insurance does not tend to protect or preserve',
8663:'a building from fire.” id. at 570. the comptroller general continued to apply the rule. in a 1927 case, a',
8664:'contracting officer attempted to agree to indemnify a contractor against loss or damage by casualty on buildings under construction. since',
8665:'the appropriation would not have been available to insure the buildings directly, the contracting officer could not agree to do',
8666:'so by contract. the stipulation to indemnify was held to exceed the contracting officer’s authority and therefore imposed no legal',
8667:'liability against the appropriation. 7 comp. gen. 105 1927. boiler inspection insurance was found improper in 11 comp. gen. 59',
8668:'1931. a more recent decision applying the selfinsurance rule is 55 comp. gen. 1196 1976. there, the national aeronautics and',
8669:'space administration nasa loaned certain property associated with the apollo moon mission to the air force for exhibition. as a',
8670:'condition of the loan, nasa required the air force to purchase commercial insurance against loss or damage to its property.',
8671:'the comptroller general found that the self insurance rule applied to the loan of property from one federal agency to',
8672:'another, and that commercial coverage should not have been procured. since the insurance had already been purchased and had apparently',
8673:'been procured and issued in good faith, the voucher could be paid. however, the decision cautioned against similar purchases in',
8674:'the future. see also b237654, feb. 21, 1991. as noted at the outset, the selfinsurance rule applies to tort liability',
8675:'as well as property damage. this was established in a 1940 decision to the federal housing administration, 19 comp. gen.',
8676:'798. in holding that insurance could not be procured against possible tort liability, the comptroller general noted that the selfinsurance',
8677:'rule “relates to the risk and not to the nature of the risk.” id. at 800. since the 1946 enactment',
8678:'of the federal tort claims act, now codified at 28 u.s.c. §§ 2671 et seq., the issue has become largely',
8679:'moot. however, questions still arise concerning the operation of page 4178 gao04261sp appropriations law—vol. i b. exceptions to the rule',
8680:'chapter 4 availability of appropriations: purpose motor vehicles, and these are discussed later in this section. conceptually related is 65',
8681:'comp. gen. 790 1986, holding that an agency may not use its appropriations to insure against loss or damage to',
8682:'employeeowned hand tools. if the agency wishes to afford a measure of protection to employees who use their own tools,',
8683:'it may consider loss or damage claims under the military personnel and civilian employees’ claims act of 1964, 31 u.s.c.',
8684:'§ 3721. this provision was amended in 1994 to permit agencies to pay for losses sustained by government personnel forced',
8685:'to evacuate a foreign country. pub. l. no. 103236, § 172, 108 stat. 382 apr. 30, 1994. another type of',
8686:'insurance which may not be paid for from appropriated funds is flight insurance. if a federal employee traveling by air',
8687:'on official business wishes to buy flight insurance, it is considered a personal expense and not reimbursable. 47 comp. gen.',
8688:'319 1967; 40 comp. gen. 11 1960. similarly nonreimbursable is trip cancellation insurance. 58 comp. gen. 710 1979. insurance on',
8689:'household goods placed in storage incident to a permanent change of duty station may not be reimbursed to the employee',
8690:'unless the insurance is required by the storage company as a condition of accepting the goods for storage or is',
8691:'otherwise required by law. 28 comp. gen. 679 1949. many of the decisions in this area include a statement to',
8692:'the effect that the government’s practice of selfinsurance “is one of policy and not of positive law.” e.g., 21 comp.',
8693:'gen. 928, 931 1942. while the statement is true, as it has been carried from decision to decision the word',
8694:'“positive” has occasionally been omitted and this has caused some confusion. all the statement means is that the rule is',
8695:'not mandated by statute, but has evolved administratively from the policy considerations summarized above. see also 71 comp. gen. 4',
8696:'1991 policy against using appropriated funds to make permanent improvements to private property. 1 departments and agencies generally exceptions to',
8697:'the selfinsurance rule may of course be authorized by statute. the absence of an express prohibition on insurance is not',
8698:'enough to authorize it; rather, specific statutory authority is required. 19 comp. gen. 798, 800 1940; 14 comp. dec. 836,',
8699:'839 1908. although legislation in this area has been minimal, congress has occasionally authorized the procurement of insurance in some',
8700:'instances and prohibited it in others. by this pattern, congressional recognition of the rule may be inferred. page 4179 gao04261sp',
8701:'appropriations law—vol. i chapter 4 availability of appropriations: purpose also, the existence of statutory authority to buy insurance does not',
8702:'necessarily mean it has to be exercised. in one case, the comptroller general recommended against the purchase of insurance although',
8703:'recognizing that it was statutorily authorized in that instance. 19 comp. gen. 211 1939. moreover, because the rule is not',
8704:'mandated by statute but rather has evolved administratively from policy considerations, there are nonstatutory exceptions in the limited number of',
8705:'cases where the underlying policy considerations do not apply. the standards for exception were summarized in b151876, apr. 24, 1964,',
8706:'as follows: 1. where the economy sought by selfinsurance would be defeated; 2. where sound business practice indicates that a',
8707:'savings can be effected; or 3. where services or benefits not otherwise available can be obtained by purchasing insurance. see',
8708:'also b290162, oct. 22, 2002; b244473.2, may 13, 1993. two world war ii cases provide early illustrations of this approach.',
8709:'in b35379, july 17, 1943, the procurement of airplane hull insurance by the civil aeronautics administration was approved. it was',
8710:'determined that the administration did not have in its employ, and was unable at the time to recruit, the number',
8711:'of qualified personnel that would be required to appraise damage and arrange for and supervise immediate repairs in connection with',
8712:'the war training service and that commercial insurance coverage could provide such services. also, in b59941, oct. 8, 1946, the',
8713:'purchase of pressure vessel insurance including essential inspection services from commercial sources was permissible because of the necessity and economy',
8714:'brought on by wartime conditions. in 37 comp. gen. 511 1958, gao considered a provision in a shipbuilding contract, which',
8715:'required the contractor to procure builder’s risk insurance, including war risk insurance that was obtainable mainly from the government. under',
8716:'the contract, title vested in the united states to the extent work was completed, but the risk of loss remained',
8717:'in the shipbuilder until the completed vessel was delivered to and accepted by the government. the government would end up',
8718:'paying part of the premiums because their cost was included in the bid price. gao approved the page 4180 gao04261sp',
8719:'appropriations law—vol. i chapter 4 availability of appropriations: purpose arrangement, finding that it did not improperly transfer the contractors risk',
8720:'to the government. a more recent example is provided in b290162, oct. 22, 2002. the architect of the capitol asked',
8721:'whether appropriated funds could be used for the purchase of “wrapup” insurance for the construction of the capitol visitor center.',
8722:'wrapup insurance would cover both the government’s risk and the risks of contractors, designers, and consultants in constructing the visitor',
8723:'center. gao held that wrapup insurance could be purchased if it were shown that purchasing wrapup insurance 1 is reasonably',
8724:'necessary or incident to the construction of the visitor center and 2 would otherwise satisfy the standards for exception discussed',
8725:'above, that is, the use of wrapup insurance would result in a savings or that a benefit, not otherwise obtainable,',
8726:'would be gained through the use of wrapup insurance. exceptions may be based on the funding arrangement of a particular',
8727:'agency or program. for example, the rule prohibiting the purchase of insurance did not apply to the panama canal commission',
8728:'because the commission operated on a selfsustaining basis, deriving its operating funds from outside sources. the vast resources available to',
8729:'the government, upon which the selfinsurance rule is founded, were not intended to be available to the commission. b217769, july',
8730:'6, 1987 holding that the commission could purchase “full scope” catastrophic insurance coverage if administratively determined to be necessary. similarly,',
8731:'gao held in b287209, june 3, 2002, that the rule prohibiting the purchase of insurance to cover loss of property',
8732:'or tort claims does not apply to the district of columbia, since the united states resources are not available to',
8733:'cover such loss sustained by the district. the fact that an agency’s initial appropriation was placed in an interestearning trust',
8734:'fund was found not sufficient to warrant an exception where the government’s resources were nevertheless available to it. b236022, jan.',
8735:'29, 1991 john c. stennis center for public service training and development. the comptroller general has held that the selfinsurance',
8736:'rule does not apply to privately owned property temporarily entrusted to the government. 17 comp. gen. 55 1937 historical items',
8737:'loaned to the government for exhibition purposes; 8 comp. gen. 19 1928 corporate books and records produced by subpoena for',
8738:'a federal grand jury; b126535o.m., feb. 1, 1956 airplane models loaned by manufacturer. compare 25 comp. dec. 358 1918, disallowing',
8739:'a claim for insurance premiums by west publishing company for law books loaned to a federal page 4181 gao04261sp appropriations',
8740:'law—vol. i chapter 4 availability of appropriations: purpose employee, where correspondence from the claimant made it clear that it was',
8741:'loaning the books to the employee personally and not to the government. however, insurance may be purchased on loaned private',
8742:'property only where the owner requires insurance coverage as part of the transaction. if the owner does not require insurance,',
8743:'private insurance is not a necessary expense and the government should selfinsure. 63 comp. gen. 110 1983 works of art',
8744:'temporarily loaned by the corcoran gallery to the president’s commission on executive exchange; 42 comp. gen. 392 1963 school classrooms',
8745:'used for civil service examinations. foreign art treasures are frequently loaned to the united states for exhibition purposes. while insurance',
8746:'may be purchased by virtue of 17 comp. gen. 55, its extremely high cost has been a disincentive. to remedy',
8747:'this situation, in 1975 congress passed the arts and artifacts indemnity act, 20 u.s.c. §§ 971–977. this statute authorizes the',
8748:'federal council on the arts and humanities to enter into agreements to indemnify against loss or damage to works of',
8749:'art and other materials while on exhibition under specified circumstances and within specified limits. claims under the act require specific',
8750:'appropriations for payment, but the agreements are backed by the full faith and credit of the united states. the act',
8751:'constitutes authority to incur obligations in advance of appropriations and the agreements would therefore not violate the antideficiency act. see',
8752:'b115398.01, apr. 19, 1977 nondecision letter. since nonappropriated fund activities are by definition not financed from public funds, they are',
8753:'not governed by the selfinsurance rule. whether the rule should or should not be followed would generally be within the',
8754:'discretion of the activity or its parent agency. thus, it is within the discretion of the department of defense to',
8755:'establish the rule by regulation for its nonappropriated fund activities. b137896, dec. 4, 1958. finally, it is important to keep',
8756:'in mind that the selfinsurance rule is aimed at insurance whose purpose is to protect the united states from risk',
8757:'of financial loss. applying the rule from this perspective, gao found that it would not preclude the federal bureau of',
8758:'investigation fbi from purchasing insurance in connection with certain of its undercover operations. the objective in these instances was not',
8759:'to protect the government against risk of loss, but to maintain the security of the operation itself, for example, by',
8760:'creating the appearance of normality for fbirun undercover proprietary corporations. thus, the fbi could treat the page 4182 gao04261sp appropriations',
8761:'law—vol. i c. specific areas of concern chapter 4 availability of appropriations: purpose expenditure purely as a “necessary expense” question.',
8762:'b204486, jan. 19, 1982. for additional exceptions, see 59 comp. gen. 369 1980 and b197583, jan. 19, 1981. 2 government',
8763:'corporations in an early case, the comptroller of the treasury indicated that the self insurance rule would not apply to',
8764:'a wholly owned government corporation and suggested that it would generally take an act of congress to apply the prohibition',
8765:'to a corporations funds. 23 comp. dec. 297 1916. the comptroller general followed this approach in 21 comp. gen. 928',
8766:'1942, noting that the rule “has not been observed strictly in cases involving insurance of property of government corporations.” id.',
8767:'at 931. the decision held that, while the funds of the virgin islands company were subject to various statutory restrictions',
8768:'on the use of public funds, they could be used to insure the company’s property. the federal housing administration is',
8769:'treated as a corporation for many purposes although it is not chartered as one. see 53 comp. gen. 337 1973.',
8770:'in 16 comp. gen. 453 1936, the comptroller general held that the administration could purchase hazard insurance on acquired property',
8771:'based on a determination of necessity, but in 19 comp. gen. 798 1940, declined to extend that ruling to cover',
8772:'insurance against possible tort liability. see also 55 comp. gen. 1321 1976 former federal home loan bank board, although technically',
8773:'not a corporation, could nevertheless insure its new office building since the board’s authority to cover losses by assessments against',
8774:'member banks made the rationale of selfinsurance rule inapplicable. 1 property owned by government contractors the cases previously discussed in',
8775:'which insurance was prohibited involved property to which the government held legal title. questions also arise concerning property to which',
8776:'the government holds less than legal title, and property owned by government contractors. a contractor will normally procure a variety',
8777:'of insurance as a matter of sound business practice. this may include hazard insurance on its property, liability insurance, and',
8778:'workers’ compensation insurance. the premiums are part of the contractors’ overhead and will be reflected in its bid price. when',
8779:'this is done, the government is paying at least a part of the insurance page 4183 gao04261sp appropriations law—vol. i',
8780:'chapter 4 availability of appropriations: purpose cost indirectly. since the risks covered are not the risks of the government, there',
8781:'is no objection to this “indirect payment” nor, if administratively determined to be necessary, to the inclusion of an insurance',
8782:'stipulation in the contract. 39 comp. gen. 793 1960; 18 comp. gen. 285, 298 1938. similarly differentiating between the government’s',
8783:'risk and the contractor’s risk, the comptroller general has applied the selfinsurance rule where the government holds “equitable title” under',
8784:'a leasepurchase agreement. 35 comp. gen. 393 1956; 35 comp. gen. 391 1956. in both decisions, the comptroller general held',
8785:'that, although the government could reimburse the lessor for the cost of insuring against its own the lessors risk, it',
8786:'could not require the lessor to carry insurance for the benefit of the government. 2 use of motor vehicles as',
8787:'noted previously, the selfinsurance rule applies to tort liability as well as property damage. 19 comp. gen. 798 1940. at',
8788:'present, the federal tort claims act, 28 u.s.c. §§ 2671 et seq., provides the exclusive remedy for claims against the',
8789:'united states resulting from the negligent operation of motor vehicles by government employees within the scope of their employment. thus,',
8790:'insurance questions have become largely moot. nevertheless, the selfinsurance rule has been involved in several situations involving the operation of',
8791:'motor vehicles. a 1966 decision, 45 comp. gen. 542, involved internal revenue service irs employees classified as “high mileage drivers.”',
8792:'they were assigned governmentowned cars for official use and, when warranted, could drive the cars home at the close of',
8793:'the workday so that they could proceed directly to an assignment from home the next morning. the treasury department asked',
8794:'whether irs appropriations were available to reimburse the employees for having their commercial liability insurance extended to cover the government',
8795:'vehicles. applying the selfinsurance rule, and noting further that the travel would most likely be considered within the scope of',
8796:'employment for purposes of the federal tort claims act, the comptroller general concluded that the funds could not be so',
8797:'used. gao similarly denied the claims of six navy members for reimbursement of extra collision insurance they purchased on rented',
8798:'trucks. they were authorized to rent trucks to perform their official duties and were even directed to obtain extra collision',
8799:'insurance. nonetheless, gao denied reimbursement because the insurance had been purchased in violation of the joint federal travel regulation, vol.',
8800:'i, para. u3415c2a, which prohibits the purchase of optional page 4184 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations:',
8801:'purpose extra collision insurance. b256669, aug. 31, 1994. see also b261141, nov. 9, 1995. collision damage waiver coverage on commercial',
8802:'rental vehicles is discussed in the section entitled “damage to commercial rental vehicles” in chapter 12 volume iii of the',
8803:'second edition of principles of federal appropriations law. in b127343, dec. 15, 1976, the comptroller general concluded that the federal',
8804:'tort claims act applied to senate employees operating senate owned vehicles within the scope of their employment. therefore, the purchase',
8805:'of commercial insurance would be neither necessary nor desirable. in 1972, the veterans administration va asked whether it could use',
8806:'its appropriations to provide liability insurance coverage for disabled veteran patients being given vaconducted driver training. since the trainees were',
8807:'not government employees, they would not be covered by the federal tort claims act. since the risk was not that',
8808:'of the government, the self insurance rule was not applicable. therefore, va could procure the liability insurance upon administrative determinations',
8809:'that 1 the driver training was a necessary part of a given patient’s medical rehabilitation and 2 that the insurance',
8810:'coverage was necessary to its success. b175086, may 16, 1972. the federal tort claims act does not apply to claims',
8811:'arising in foreign countries and the rules are a bit different for driving overseas. originally, notwithstanding the nonavailability of the',
8812:'federal tort claims act, the comptroller general had prohibited the purchase of insurance for governmentowned vehicles operated in foreign countries.',
8813:'39 comp. gen. 145 1959. instances of specific statutory authority for the state department and the foreign agricultural service were',
8814:'viewed as precluding insurance in other situations without similar legislative sanction. however, gao reviewed and revised its position in 1976.',
8815:'in 55 comp. gen. 1343 1976, the comptroller general held that the general services administration gsa could provide by regulation',
8816:'for the purchase of liability insurance on governmentowned vehicles operated regularly or intermittently in foreign countries, where required by local',
8817:'law or necessitated by legal procedures that could pose extreme difficulties in case of an accident such as arrest of',
8818:'the driver and/or impoundment of the vehicle. the decision also concluded that gsa could amend its regulations to permit reimbursement',
8819:'of federal employees for the cost of “trip page 4185 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose',
8820:'insurance” on both governmentowned and privately owned vehicles in foreign countries where liability insurance is a legal or practical necessity.',
8821:'the decision was extended in 55 comp. gen. 1397 1976 to cover the cost of required insurance on vehicles leased',
8822:'commercially in foreign countries on a longterm basis. some confusion may result from the statement in 55 comp. gen. 1343,',
8823:'1347, that “39 comp. gen. 145 1959, 19 comp. gen. 798 1940, and similar decisions” are overruled “to the extent',
8824:'that they are inconsistent with this decision.” since 39 comp. gen. 145 prohibited insurance on governmentowned vehicles in foreign countries,',
8825:'it is properly viewed as overruled by 55 comp. gen. 1343. however, 19 comp. gen. 798 and “similar decisions” remain',
8826:'valid insofar as they assert the general applicability of the selfinsurance rule to tort liability and to motor vehicle usage',
8827:'in the united states. they should be viewed as modified to the extent that they no longer preclude purchase of',
8828:'insurance in the foreign country situations dealt with in 55 comp. gen. 1343 and 55 comp. gen. 1397. 3 losses',
8829:'in shipment early decisions had applied the selfinsurance rule to the risk of damage or loss of valuable government property',
8830:'while in shipment. thus, marine insurance could not be purchased for shipment of a box of silverware. 4 comp. gen.',
8831:'690 1925. nor could it be purchased to cover shipment of $5,000 in silver dollars from san francisco to samoa.',
8832:'22 comp. dec. 674 1916, aff’d upon reconsideration, 23 comp. dec. 297 1916. in 1937, congress enacted the government losses',
8833:'in shipment act, 40 u.s.c. §§ 721–729. the act provides a fund for the payment of claims resulting from the',
8834:'loss or damage in shipment of governmentowned “valuables” as defined in the act. the act also prohibits the purchase of',
8835:'insurance except as specifically authorized by the secretary of the treasury. the secretary may give such an authorization when he',
8836:'finds the risk of loss in shipment cannot adequately be guarded against by the facilities of the united states or',
8837:'adequate replacement cannot be provided for. see s. rep. no. 75738, at 5 1937. if a given risk is beyond',
8838:'the scope of the act, for example, if the items in question are not within the definition of “valuables” or',
8839:'if the particular movement does not qualify as “shipment,” then the selfinsurance rule and its exceptions would still apply. see,',
8840:'e.g., 17 comp. gen. 419 1937; b244473.2, may 13, 1993. page 4186 gao04261sp appropriations law—vol. i chapter 4 availability of',
8841:'appropriations: purpose 4 bonding of government personnel prior to 1972, the federal government frequently required the surety bonding of officers',
8842:'and employees who handled money or other valuables. in 1972, congress enacted legislation, now found at 31 u.s.c. § 9302,',
8843:'to expressly prohibit the government from requiring or obtaining surety bonds for its civilian employees or military personnel in connection',
8844:'with the performance of their official duties. the reasons for this legislation parallel the policy considerations behind the selfinsurance rule.',
8845:'indeed, the objective of the legislation was to substitute the principle of self insurance for the practice of obtaining surety',
8846:'bonds on federal employees where the risk insured against is a loss of government funds or property in which the',
8847:'united states is the insured.106 56 comp. gen. 788, 790 1977. although 31 u.s.c. § 9302 does not define “officer”',
8848:'or “employee,” the definitions in title 5 of the united states code are available for guidance. b236022, jan. 29, 1991.',
8849:'under the former system, the surety bonds were for the protection of the government, not the bonded employee. if a',
8850:'loss occurred and the government collected on the bond, the surety could attempt to recover against the individual employee. thus,',
8851:'the elimination of bonding in no way affects the personal liability of federal employees, and 31 u.s.c. § 9302 specifies',
8852:'this. this principle has been noted several times in connection with the liability of accountable officers and the cases are',
8853:'cited in chapter 9. in 56 comp. gen. 788 1977, the comptroller general held that, by virtue of 31 u.s.c.',
8854:'§ 9302, the united states became a selfinsurer of restitution, reparation, and support moneys collected by probation officers under court',
8855:'order. the decision noted that the same result applied to litigation funds paid into the registry of the court funds',
8856:'paid into the registry by a litigant pending distribution by the court to the successful party. however, if an agency',
8857:'requires an employee to serve as a notary public and state law requires bonding of notaries, the employee’s expense in',
8858:'obtaining the surety bond may be reimbursed notwithstanding 31 u.s.c. § 9302. the bond in such a situation is neither',
8859:'required by nor obtained by the federal 106 gao had recommended the legislation. see u.s. general accounting office, review of',
8860:'bonding program for employees of the federal government, b8201 washington, d.c.: mar. 29, 1962; b8201, b59149, jan. 18, 1972 bill',
8861:'comments. page 4187 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose government. it is required by the state',
8862:'and obtained by the employee. also, the risk involved is not one in which the united states is the insured.',
8863:'b185909, june 16, 1976. similarly, if a federal court designates a state court employee to perform certain functions in connection',
8864:'with the arrest and detention of federal offenders, 31 u.s.c. § 9302 does not preclude the administrative office of the',
8865:'united states courts from requiring that the state employee be bonded since the statute applies only to federal employees. 52',
8866:'comp. gen. 549 1973. 11. lobbying and related matters a. introduction lobbying—attempting to influence legislators—is nothing new. the term itself',
8867:'derives from the practice of advocates of a particular measure lying in wait in the corridors or “lobby” of the',
8868:'capitol building, there to collar passing members of congress. generally speaking, there are two types of lobbying. “direct lobbying,” as',
8869:'the term implies, means direct contact with the legislators, either in person or by various means of written or oral',
8870:'communication. “indirect” or “grassroots” lobbying is different. there, the lobbyist contacts third parties, either members of special interest groups or',
8871:'the general public, and urges them to contact their legislators to support or oppose something. of course, the term “lobbying”',
8872:'can also refer to attempts to influence decision makers other than legislators. there is nothing inherently evil about lobbying. a',
8873:'house select committee investigating lobbying in 1950 put it this way: “every democratic society worthy of the name must have',
8874:'some lawful means by which individuals and groups can lay their needs before government. one of the central purposes of',
8875:'government is that people should be able to reach it; the central purpose of what we call ‘lobbying’ is that',
8876:'they should be able to reach it with maximum impact and page 4188 gao04261sp appropriations law—vol. i chapter 4 availability',
8877:'of appropriations: purpose possibility of success. this is, fundamentally, what lobbying is about.”107 nevertheless, because of the obvious potential for',
8878:'abuse, there are legal restrictions on lobbying. this section will explore some of them. because the focus of this publication',
8879:'is on the use of appropriated funds, coverage is limited for the most part to lobbying by government officials and',
8880:'does not include lobbying by private organizations. restrictions on lobbying by government officials derive from two sources: penal statutes and',
8881:'provisions in appropriation acts. b. penal statutes originally enacted in 1919, 18 u.s.c. § 1913 provided for criminal sanctions. in',
8882:'late 2002, however, the statute was amended to omit the criminal sanctions and significantly expand the scope of the lobbying',
8883:'restriction.108 the statute, commonly referred to as the antilobbying act, now provides: “no part of the money appropriated by any',
8884:'enactment of congress shall, in the absence of express authorization by congress, be used directly or indirectly to pay for',
8885:'any personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device, intended or designed to influence in',
8886:'any manner a member of congress, a jurisdiction, or an official of any government, to favor, adopt, or oppose, by',
8887:'vote or otherwise, any legislation, law, ratification, policy, or appropriation, whether before or after the introduction of any bill, measure,',
8888:'or resolution proposing such legislation, law, ratification, policy, or appropriation; but this shall not prevent officers or employees of the',
8889:'united states or of its departments or agencies from communicating to any such member or official, at his request, or',
8890:'to congress or such official, through the proper official channels, requests for any legislation, law, ratification, policy, or appropriations which',
8891:'they deem necessary for the efficient conduct of the public 107 general interim report of the house select committee on',
8892:'lobbying activities, h.r. rep. no. 813138, at 1 1950. 108 21st century department of justice appropriations authorization act, pub. l.',
8893:'no. 107273, div. a, title ii, § 205b, 116 stat. 1758, 1778 nov. 2, 2002. page 4189 gao04261sp appropriations law—vol.',
8894:'i chapter 4 availability of appropriations: purpose business, or from making any communication whose prohibition by this section might, in',
8895:'the opinion of the attorney general, violate the constitution or interfere with the conduct of foreign policy, counterintelligence, intelligence, or',
8896:'national security activities.” the statute is now punishable by civil penalties ranging between $10,000 and $100,000 per expenditure. section 1913',
8897:'actually incorporates the civil penalties contained in another lobbying statute, 31 u.s.c. § 1352. section 1352a prohibits recipients of federal',
8898:'contracts, grants, or loans from using such funds to lobby in connection with the awarding of such contracts, grants, or',
8899:'loans. a thorough discussion of 31 u.s.c. § 1352, also known as the byrd amendment, is found in the subsequent',
8900:'section on lobbying with grant funds in this chapter, section c.11.d. prior to the 2002 amendment, 18 u.s.c. § 1913',
8901:'only prohibited the use of appropriated funds for lobbying aimed at the most basic legislative activities of congress. the amended',
8902:'statute expands the prohibition to a broader scope of legislative activities conducted at all levels of government, not just the',
8903:'federal level. to date there has been no case law interpreting the expanded and decriminalized 18 u.s.c. § 1913. the',
8904:'following discussion of the statute, while based upon section 1913 before it was amended in 2002, nevertheless provides a solid',
8905:'foundation for interpreting the statute as the basic framework of the lobbying restriction was not altered. the context in which',
8906:'the original section 1913 was enacted is reflected in the following passage from the floor debate on the 1919 legislation:',
8907:'“the bill also contains a provision which …will prohibit a practice that has been indulged in so often, without regard',
8908:'to what administration is in power—the practice of a bureau chief or the head of a department writing letters throughout',
8909:'the country, sending telegrams throughout the country, for this organization, for this man, for that company to write his congressman,',
8910:'to wire his congressman, in behalf of this or that legislation. [applause.] the gentleman from kentucky …during the closing days',
8911:'of the last congress was greatly worried because he had on his desk thousands upon thousands of telegrams that had',
8912:'been started right here in washington by some official wiring out for people to wire page 4190 gao04261sp appropriations law—vol.',
8913:'i chapter 4 availability of appropriations: purpose congressman sherley …now, it was never the intention of congress to appropriate money',
8914:'for this purpose, and [§ 1913] will absolutely put a stop to that sort of thing. [applause. ]” 109 since',
8915:'18 u.s.c. § 1913 was a criminal statute, its enforcement was the responsibility of the justice department and the courts.',
8916:'although the statute no longer contains criminal sanctions, the justice department continues to have enforcement responsibilities. the enforcement mechanism for',
8917:'18 u.s.c. § 1913 is derived from 31 u.s.c. § 1352c, which provides that violations are to be handled in',
8918:'accordance with the administrative process for adjudicating civil liability for false claims. under this process, provided for under the program',
8919:'fraud civil remedies act of 1986, 31 u.s.c. § 3801–3812, no alleged violation is subject to adjudication unless approved by',
8920:'the justice department. 31 u.s.c. § 3803b2. the justice department is also responsible for the judicial enforcement of any civil',
8921:'penalty imposed. 31 u.s.c. § 3806. where gao has determined that appropriated funds were used, it would refer those matters',
8922:'to the justice department in appropriate cases. e.g., b192658, sept. 1, 1978; b1644975, mar. 10, 1977. generally, gao would refer',
8923:'matters to the justice department if asked to do so by a member of congress or where available information provided',
8924:'reasonable cause to suspect that a violation may have occurred. b145883, apr. 27, 1962. in addition, since a violation of',
8925:'section 1913 is by definition an improper use of appropriated funds, such a violation could form the basis of a',
8926:'gao exception or disallowance.110as a practical matter, however, this option is often not viable. gao’s real “enforcement” tool is to',
8927:'report any unlawful activities to congress in furtherance of congress’s oversight of executive branch activities.111 109 58 cong. rec. 403',
8928:'1919 remarks of representative good, quoted in national treasury employees union v. campbell, 654 f.2d 784, 791 d.c. cir. 1981.',
8929:'110 in the past, gao noted that it could take no action unless the justice department or the courts first',
8930:'determined that there had been a violation. b1644975, mar. 10, 1977. 111 see u.s. general accounting office, h.r. 3078, the',
8931:'federal agency antilobbying act, gao/togc9618 washington, d.c.: may 15, 1996. page 4191 gao04261sp appropriations law—vol. i chapter 4 availability of',
8932:'appropriations: purpose the justice department has construed section 1913 as applying to large scale “grassroots” lobbying campaigns of telegrams, letters,',
8933:'and other forms of communication designed to generate citizen contacts with congress on behalf of an administration position with respect',
8934:'to pending legislation, but not to direct communications between executive branch officials and congress. more recently, the justice department emphasized',
8935:'that section 1913 does not apply to 1 public speeches, appearances, or writings, so that officials are free to publicly',
8936:'advance administration positions, even to the point of calling on the public to encourage members of congress to support such',
8937:'positions, or 2 the lobbying activities of the president, his aides and assistants within the executive office of the president,',
8938:'the vice president, cabinet members, and other senate confirmed officials appointed by the president. see memorandum for the attorney general',
8939:'and the deputy attorney general from walter dellinger, assistant attorney general, department of justice, office of legal counsel, apr. 14,',
8940:'1995; 13 op. off. legal counsel 300 1989. in evaluating particular fact situations to determine possible violations of section 1913,',
8941:'gao has applied the justice department’s interpretation of that statute. thus, gao found that referral to the justice department was',
8942:'not warranted in the following situations: various judicial branch activities including direct contacts with legislators by federal judges, legislative liaison',
8943:'activities by the judicial conference of the united states, and some grassroots lobbying that did not involve the use of',
8944:'federal funds. 63 comp. gen. 624 1984. providing to a private lobbying group a copy of congressional testimony by the',
8945:'secretary of state supporting the administration’s central american policies. 66 comp. gen. 707 1987. the answer would have been different',
8946:'if the state department had used appropriated funds to develop material for the lobbying group rather than simply providing existing',
8947:'and readily available material. id. at 712. see also “providing assistance to private lobbying groups” later in this chapter, section',
8948:'c.11.c, and b229069.2, aug. 1, 1988. contacts with congressional staff members and a briefing for the house foreign affairs committee',
8949:'by state department officials designed to generate opposition for a legislative measure perceived as inconsistent with administration nuclear nonproliferation policy.',
8950:'b217896, july 25, 1985. page 4192 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose speeches and written materials',
8951:'by the chairman of the federal trade commission expressing opposition to the postal service’s “monopoly” status for letter class mail.',
8952:'none of the materials exhorted members of the public to contact their legislators. b229257, june 10, 1988.112 written materials prepared',
8953:'and disseminated by the small business administration sba, none of which included grassroots lobbying, designed to support an administration proposal',
8954:'to transfer sba to the commerce department. b223098, b223098.2, oct. 10, 1986. transmission of information by the consumer product safety',
8955:'commission to a private company advising of scheduled congressional hearings on legislation relevant to a problem the company was facing.',
8956:'b229275o.m., nov. 17, 1987. the memorandum stated: “we believe it is within the statutory authority of a regulatory agency to',
8957:'advise a regulated company that a remedy it seeks can only be obtained through legislation and that such legislative remedy',
8958:'may be initiated by a particular congressional committee.” congressional briefings by department of energy officials designed to influence views on',
8959:'nuclear weapons testing legislation. a planned media campaign to further that objective would have been more questionable, but it was',
8960:'not carried out. u.s. general accounting office, nuclear test lobbying: doe regulations for contractors need reevaluation, gao/rced8825br washington, d.c.: oct.',
8961:'9, 1987. memorandum written by commissioner of commodity futures trading commission, urging individuals and organizations to “make [their] position known',
8962:'to the cosponsors of this [b]ill,” constituted grassroots lobbying. however, no referral was made since the commissioner was a presidential',
8963:'appointee confirmed by the senate and the amount spent on the memorandum was not substantial. b270875, july 5, 1996. letter',
8964:'sent by deputy secretary of energy to thousands of individuals and organizations addressing the administration’s energy policies and 112 although',
8965:'not noted in the decision, under the department of justice’s interpretation of section 1913 noted above, the lobbying activities of',
8966:'the chairman would not have been restricted in any case. see, e.g., b270875, july 5, 1996. page 4193 gao04261sp appropriations',
8967:'law—vol. i chapter 4 availability of appropriations: purpose legislative proposals was not grassroots lobbying as recipients were encouraged to contact',
8968:'the deputy secretary, not their elected representatives. moreover, the deputy secretary’s activities were not restricted by section 1913 since he',
8969:'was a senateconfirmed presidential appointee. b270875, july 5, 1996. environmental protection agency distribution of fact sheets to various organizations setting',
8970:'forth the adverse effects of pending legislation on the environment, was not grassroots lobbying as none of the material contained',
8971:'direct appeals for people to contact members of congress. b270875, july 5, 1996. numerous additional examples may be found in',
8972:'our discussion of “pending legislation” appropriation restrictions later in this chapter, in section c.11.c. gao found the following situations sufficiently',
8973:'questionable to warrant referral to justice:113 an article written by a commerce department official and published in business america, a',
8974:'commerce department publication, explicitly urging readers to contact their elected representatives in congress to support certain amendments to the export',
8975:'administration act. b2122351, nov. 17, 1983. under the justice department’s more recent interpretations of section 1913, this case would not',
8976:'have warranted referral since officials are free to publicly advance administration positions. campaign by air force and defense department to',
8977:'use contractors’ lobbyists and subcontractor network to lobby congress in support of c5b aircraft procurement. u.s. general accounting office, improper',
8978:'lobbying activities by the department of defense on the proposed procurement of the c5b aircraft, gao/afmd82123 washington, d.c.: sept. 29,',
8979:'1982. 113 a few early cases will be found in which gao held expenditures illegal under 18 u.s.c. § 1913.',
8980:'e.g., b139134o.m., june 17, 1959 air force paid registration fee for members to enter state rifle association shooting match; portion',
8981:'of fee set aside for fund to fight adverse gun legislation held to be an improper payment; b76695, june 8,',
8982:'1948. page 4194 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose as of early 1995, the justice department',
8983:'reported that there had been no prosecutions under section 1913.114 see memorandum for the attorney general and the deputy attorney',
8984:'general from walter dellinger, assistant attorney general, department of justice, office of legal counsel, apr. 14, 1995. to our knowledge,',
8985:'justice initiated no prosecutions between 1995 and 2002 when section 1913 was amended. as noted earlier, there has been no',
8986:'judicial activity under the amended version of 18 u.s.c. § 1913. the only judicial activity addressing the preamendment version was',
8987:'the issue of whether the statute created a private right of action. the answer was no. national treasury employees union',
8988:'v. campbell, 482 f. supp. 1122 d.d.c. 1980, aff’d, 654 f.2d 784 d.c. cir. 1981, overruling national association for community',
8989:'development v. hodgson, 356 f. supp. 1399 d.d.c. 1973; grassley v. legal services corp., 535 f. supp. 818 s.d. iowa',
8990:'1982; american trucking assn’s, inc. v. department of transportation, 492 f. supp. 566 d.d.c. 1980. one other statute with penal',
8991:'sanctions deserves brief mention— the lobbying disclosure act of 1995, pub. l. no. 10465, 109 stat. 691 dec. 19, 1995,',
8992:'codified largely at 2 u.s.c. § 1601–1612. this statute does not apply to the legislative activities of government agencies, but',
8993:'rather to organizations that lobby certain federal officials in the legislative and executive branches. these organizations are required to register',
8994:'with the secretary of the senate and the clerk of the house of representatives and to semiannually report expenditures and',
8995:'certain other information related to their lobbying efforts. 2 u.s.c. § 1603a and § 1604.115 this statute repealed the 1946',
8996:'federal regulation of lobbying act, which gao criticized for resulting in comparatively few lobbyists registering with congress. see u.s. general',
8997:'accounting office, federal lobbying: comments on the adequacy of federal lobbying laws, gao/tggd9349 washington, d.c.: sept. 30, 1993. 114 a',
8998:'conclusion by the justice department that section 1913 was violated would not have automatically resulted in a prosecution. the attorney',
8999:'general has what is known as “prosecutorial discretion,” wherein a great many factors influence the decision whether to prosecute. 115',
9000:'see u.s. general accounting office, federal lobbying: differences in lobbying definitions and their impact, gao/ggd9938 washington, d.c.: apr. 15, 1999.',
9001:'page 4195 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose c. appropriation act restrictions 1 origin and general',
9002:'considerations in 1949, a house resolution created a select committee on lobbying activities to review the operation of the federal',
9003:'regulation of lobbying act and to investigate all lobbying activities both by the private sector and by federal agencies. the',
9004:'committee held extensive hearings and issued several reports. in its final report, the committee had this to say about lobbying',
9005:'by government agencies: “the existing law in this field, unlike the law governing lobbying by private interests, is not directed',
9006:'toward obtaining information of such activities, but is prohibitory in concept and character. it forbids the use of appropriated funds',
9007:'for certain types of lobbying activities and is specifically a part of the criminal code. enacted in 1919, it is',
9008:'not a recent or in any sense a novel piece of legislation. its validity has never been challenged and we',
9009:'consider it sound law…. “it is our conclusion that the longestablished criminal statute referred to above should be retained intact',
9010:'and that congress, through the proper exercise of its powers to appropriate funds and to investigate conditions and practices of',
9011:'the executive branch, as well as through its financial watch dog, the general accounting office, can and should remain vigilant',
9012:'against any improper use of appropriated funds and any invasion of the legislative prerogatives and responsibilities of the congress.”116 when',
9013:'the select committee referred to the “proper exercise” of the congressional power to appropriate funds, it of course had in',
9014:'mind the use of that power to restrict the use of funds for activities considered undesirable. while the use of',
9015:'appropriation act restrictions to control lobbying had some earlier precedent, the practice began in earnest shortly after the issuance of',
9016:'the select committee’s final report with some fiscal year 1952 appropriations, and has continued ever since. 116 house select committee',
9017:'on lobbying activities, report and recommendations on federal lobbying act, h.r. rep. no. 813239, at 36 1951. page 4196 gao04261sp',
9018:'appropriations law—vol. i chapter 4 availability of appropriations: purpose the most common form of appropriation act restriction prohibits the use',
9019:'of funds for “publicity or propaganda.” there are several variations of the provision, with varying degrees of specificity. as of',
9020:'2003, in addition to two governmentwide publicity or propaganda restrictions, approximately half of the regular annual appropriation acts include some',
9021:'version. the simplest version of the statute, and the most general, is this: “no part of any appropriation contained in',
9022:'this act shall be used for publicity or propaganda purposes not authorized by the congress.”117 it prohibits expenditures for all',
9023:'unauthorized publicity or propaganda. unfortunately, as with most of the publicity and propaganda statutes over the years, there is no',
9024:'definition of either term. thus, the statutes have been applied through administrative interpretation. in construing and applying a publicity or',
9025:'propaganda provision, it is necessary to achieve a delicate balance between competing interests. on the one hand, every agency has',
9026:'a legitimate interest in communicating with the public and with the congress regarding its functions, policies, and activities. the select',
9027:'committee recognized this, quoting in its interim report from the report of the hoover commission: “apart from his responsibility as',
9028:'spokesman, the department head has another obligation in a democracy: to keep the public informed about the activities of his',
9029:'agency. how far to go and what media to use in this effort present touchy issues of personal and administrative',
9030:'integrity. but of the basic obligation there can be little doubt.”118 in addition, the courts have indicated that it is',
9031:'not illegal for government agencies to spend money to advocate their positions, even on controversial issues. see joyner v. whiting,',
9032:'477 f.2d 456, 461 4th cir. 1973; donaggio v. arlington county, virginia, 880 f. supp. 446, 454–56 e.d. 117 e.g.,',
9033:'departments of commerce, justice, and state, the judiciary, and related agencies appropriation act, 2003, pub. l. no. 1087, div. b,',
9034:'§ 601, 117 stat. 11, 99 feb. 20, 2003. 118 h.r. rep. no. 813138, at 53 1950. page 4197 gao04261sp',
9035:'appropriations law—vol. i chapter 4 availability of appropriations: purpose va. 1995; arrington v. taylor, 380 f. supp. 1348, 1364 m.d.',
9036:'n.c. 1974.119 yet on the other hand, the statute has to mean something. as the court said in national association',
9037:'for community development v. hodgson, 356 f. supp. 1399 d.d.c. 1973 in reference to 18 u.s.c. § 1913, “[o]bviously, congress',
9038:'intended to remedy some problem or further some cause, otherwise they would not have bothered enacting the statute.” id. at',
9039:'1403. as long as the law exists, there has to be a point beyond which government action violates it. testifying',
9040:'before the select committee on march 30, 1950, former assistant comptroller general frank weitzel made the following remarks: “[i]f you',
9041:'set up an organization in the executive branch for the benefit of the three blind mice they would come up',
9042:'here with a budget program and prospectus which would convince any member of congress that that was one of the',
9043:'most important organizations in the executive branch…. “and no doubt by that time there would also be some private organizations',
9044:'with branches which would parallel your federal agency, which would be devoted to the propagation and dissemination of information about',
9045:'the three blind mice….”120 in evaluating whether a given action violates a publicity or propaganda provision, gao will rely heavily',
9046:'on the agency’s administrative justification. in other words, the agency gets the benefit of any legitimate doubt. gao will not',
9047:'accept the agency’s justification where it is clear that the action falls into one of a very few specific categories.',
9048:'before discussing what those categories are, two threshold issues must be noted. first, it must be determined whether the agency',
9049:'in question is subject to a publicity or propaganda restriction. the existence and precise terms of the 119 further useful',
9050:'discussion may be found in cases dealing with different but conceptually related issues such as glickman v. wileman brothers &',
9051:'elliott, inc., 521 u.s. 457 1997, citing united states v. frame, 885 f.2d 1119 3rd cir. 1989. 120 the role',
9052:'of lobbying in representative selfgovernment: hearings before the house select committee on lobbying activities, 81st cong., pt. 1, at 158',
9053:'1950. page 4198 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose restriction can change over time. therefore, it',
9054:'is always necessary to check the relevant appropriation acts for the year in which the questioned obligation or expenditure was',
9055:'made in order to determine what, if any, agencyspecific or governmentwide restrictions exist. second, a violation must be predicated on',
9056:'the use of public funds either direct appropriations or funds which, although not direct appropriations, are treated as appropriated funds.',
9057:'if appropriated funds are not involved, there is no violation no matter how blatant the conduct may be. 56 comp.',
9058:'gen. 889 1977 involving a newsletter concerning the clinch river breeder reactor project containing material that would have been illegal',
9059:'had it been financed in any way with appropriated funds. 2 selfaggrandizement as noted above, the broadest form of the',
9060:'publicity and propaganda restriction prohibits the use of appropriated funds “for publicity or propaganda purposes not authorized by the congress.”',
9061:'a fiscal year 2003 governmentwide variation limits the restriction to activities “within the united states.”121 the comptroller general first had',
9062:'occasion to construe this provision in 31 comp. gen. 311 1952. the national labor relations board asked whether the activities',
9063:'of its division of information amounted to a violation. reviewing the statute’s scant legislative history, the comptroller general concluded that',
9064:'it was intended “to prevent publicity of a nature tending to emphasize the importance of the agency or activity in',
9065:'question.” id. at 313. therefore, the prohibition would not apply to the “dissemination to the general public, or to particular',
9066:'inquirers, of information reasonably necessary to the proper administration of the laws” for which an agency is responsible. id. at',
9067:'314. based on this interpretation, gao concluded that the activities of the board’s division of information were not improper. the',
9068:'only thing gao found that might be questionable, the decision noted, were certain press releases reporting speeches of members of',
9069:'the board. thus, 31 comp. gen. 311 established the important proposition that the statute does not prohibit an agency’s legitimate',
9070:'informational activities. see also b284226.2, aug. 17, 2000; b223098, b223098.2, oct. 10, 1986; 121 e.g., treasury and general government appropriations',
9071:'act, 2003, pub. l. no. 1087, div. j, § 626, 117 stat. 11, 470 feb. 20, 2003. page 4199 gao04261sp',
9072:'appropriations law—vol. i chapter 4 availability of appropriations: purpose b177704, feb. 7, 1973; u.s. general accounting office, military activities: display',
9073:'of equipment at the former philadelphia naval base in july 2000, gao0177r washington, d.c.: oct. 18, 2000; u.s. attorneys: laws,',
9074:'rules, and policies governing political activities, gao/ggd00171 washington, d.c.: july 24, 2000. it is geared at activities whose obvious purpose',
9075:'is “selfaggrandizement” or “puffery.” gao’s approach to this statute is basically the same as its approach to the other appropriation',
9076:'act lobbying restrictions to be discussed in detail later. the statute does not provide adequate guidelines to distinguish the legitimate',
9077:'from the proscribed. thus, without further clarification from congress or the courts, gao is reluctant to find a violation where',
9078:'the agency can provide a reasonable justification for its activities. in a 1973 case, b178528, july 27, 1973, the republican',
9079:'national committee financed a mass mailing of copies of editorials from british newspapers in praise of the president. the editorials',
9080:'were transmitted with a letter prepared by a member of the white house staff, on state department letterhead stationery, and',
9081:'signed by the ambassador to great britain. gao again noted the extreme difficulty in distinguishing between disseminating information to explain',
9082:'or defend administration policies, which is permissible, and similar activities designed for purely political or partisan purposes. see also b194776,',
9083:'june 4, 1979. in addition, a legitimate function of a foreign legation is to communicate information on press reaction in',
9084:'the host country to policies of the united states. thus, gao was unable to conclude that there was any violation',
9085:'of the publicity and propaganda law. in any event, the use of appropriated funds was limited to the cost of',
9086:'one piece of paper and the time it took the ambassador to think about it and sign his name. other',
9087:'cases in which gao found no violation are b284226.2, supra housing and urban development report “losing ground” and accompanying letter',
9088:'providing information to agency constituents about the impact of program reductions being proposed in congress; b212069, oct. 6, 1983 press',
9089:'release by director of office of personnel management excoriating certain members of congress who wanted to delay a civil service',
9090:'measure the administration supported; and b161686, june 30, 1967 state department publications on vietnam war. in none of these cases',
9091:'were the documents designed to glorify the issuing agency or official. similarly, gao concluded that the census bureau did not',
9092:'violate this restriction when its employees participated in a symposium. the page 4200 gao04261sp appropriations law—vol. i chapter 4 availability',
9093:'of appropriations: purpose symposium was to attract thousands of africanamericans, a population the bureau characterized as “hardtocount” and therefore targeted',
9094:'in its outreach activities. the bureau’s participation in the symposium was limited to responding to questions about the census and',
9095:'giving away promotional items and was therefore legitimate informational activity, not puffery or selfaggrandizement. see u.s. general accounting office, census',
9096:'bureau participation in los angeles symposium, august 2000, gao01124r washington, d.c.: oct. 24, 2000. gao did find a violation in',
9097:'b136762, aug. 18, 1958. the deputy assistant secretary of defense for military assistance programs attended a meeting of the aircraft',
9098:'industries association and made a speech “clearly designed to enlist the aid of the aircraft industries association in publicizing and',
9099:'selling the mutual security program to the american public through the various media available to the association.” reviewing the text',
9100:'of the speech, gao found that it went far beyond any legitimate purpose of informing the public and that it',
9101:'therefore violated the publicity and propaganda restriction. however, the officer had been authorized to attend the meeting as related to',
9102:'the performance of official duty and would have been entitled to per diem for the full day even if he',
9103:'had not made the speech. therefore, since the government incurred no additional expense by virtue of the speech, gao declined',
9104:'to seek recovery either from the officer himself or from the accountable officers who had made the payment. some agencies',
9105:'have authority to disseminate material that is promotional rather than purely informational. for example, the commerce department is charged with',
9106:'promoting commerce. in so doing, it entered into a contract with the advertising council to undertake a national multimedia campaign',
9107:'to enhance public understanding of the american economic system. finding that this was a reasonable means of implementing its function',
9108:'and that the campaign did not “aggrandize” the commerce department, gao found nothing illegal. b184648, dec. 3, 1975. if an',
9109:'agency does not have promotional authority, the scope of its permissible activities is correspondingly more restricted. for example, gao found',
9110:'the publicity and propaganda law violated when a presidential advisory committee, whose sole function was to advise the president and',
9111:'which had no promotional role, set up and implemented a public affairs program that included the hiring of a “publicity',
9112:'expert.” b222758, june 25, 1986. page 4201 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose see section c.11.f',
9113:'of this chapter for further discussion of agency promotional authorities and the employment of publicity experts. 3 covert propaganda another',
9114:'type of activity that gao has construed as prohibited by the “publicity or propaganda not authorized by congress” statute is',
9115:'“covert propaganda,” defined as “materials such as editorials or other articles prepared by an agency or its contractors at the',
9116:'behest of the agency and circulated as the ostensible position of parties outside the agency.” b229257, june 10, 1988. a',
9117:'critical element of the violation is concealment of the agency’s role in sponsoring the material. id. in a 1986 case,',
9118:'the small business administration sba prepared “suggested editorials” and distributed them to newspapers. the editorials urged support of an administration',
9119:'proposal to merge sba with the department of commerce. the editorials were clearly “propaganda.” this, however, was not enough to',
9120:'violate the law. the problem was that they were misleading as to their origin. the plan presumably was for a',
9121:'newspaper to print the editorial as its own without identifying it as an sba document. this, the comptroller general concluded,',
9122:'went beyond the range of acceptable public information activities and therefore violated the publicity and propaganda law. b223098, b223098.2, oct.',
9123:'10, 1986. a similar holding is 66 comp. gen. 707 1987, involving newspaper articles and editorials in support of central',
9124:'american policy. the materials were prepared by paid consultants at government request, and published as the work of nongovernmental parties.',
9125:'the decision also found that media visits by nicaraguan opposition leaders, arranged by government officials but with that fact concealed,',
9126:'constituted another form of “covert propaganda.” see also b129874, sept. 11, 1978 “canned editorials” and sample letters to the editor',
9127:'in support of consumer protection agency legislation, had they been prepared, would have violated the law. in b229257, supra, the',
9128:'federal trade commission ftc prepared a variety of materials critical of the postal services “monopoly” on letter class mail, for',
9129:'distribution at a national press club breakfast that the postmaster general was to attend. while the material was unquestionably propaganda,',
9130:'it did not violate the law because it identified the ftc as the source. page 4202 gao04261sp appropriations law—vol. i',
9131:'chapter 4 availability of appropriations: purpose 4 pending legislation: overview the version of the appropriations act restriction that the comptroller',
9132:'general has had the most frequent occasion to apply is the version prohibiting publicity and propaganda designed to influence pending',
9133:'legislation. for over 30 years, from the early 1950s to fiscal year 1984, the following provision was enacted every year:',
9134:'“no part of any appropriation contained in this or any other act …shall be used for publicity or propaganda purposes',
9135:'designed to support or defeat legislation pending before congress.”122 as long as this version was in effect, it applied, by',
9136:'virtue of the “this or any other act” language, to all government agencies regardless of which appropriation act provided their',
9137:'funds. for fiscal year 1984, the “this or any other act” provision fell victim to a point of order and',
9138:'was dropped. see 64 comp. gen. 281 1985. for some time after that, no governmentwide provision existed. however, another change',
9139:'in course occurred and since fiscal year 1997,123 the following governmentwide “pending legislation” provision has been in place: “no part',
9140:'of any funds appropriated in this or any other act shall be used by an agency of the executive branch,',
9141:'other than for normal and recognized executivelegislative relationships, for publicity or propaganda purposes, and for the preparation, distribution or use',
9142:'of any kit, pamphlet, booklet, publication, radio, television or film presentation 122 e.g., treasury, postal service, and general government appropriations',
9143:'act, 1980, pub. l. no. 9674, § 607a, 93 stat. 559, 575 sept. 29, 1979. 123 in fiscal year 1996',
9144:'gao investigated whether or not the activities of five agencies violated any antilobbying provisions and concluded that there were no',
9145:'violations, in part, because only one of the five agencies was covered by a restriction on influencing pending legislation. b270875,',
9146:'july 5, 1996. a governmentwide restriction reappeared the next fiscal year. page 4203 gao04261sp appropriations law—vol. i chapter 4 availability',
9147:'of appropriations: purpose designed to support or defeat legislation pending before the congress, except in presentation to the congress itself.”124',
9148:'although the governmentwide provision currently in place is more detailed than the prior governmentwide restriction, we have concluded that the',
9149:'language currently used has the same legal effect. see b270875, supra. during the time when there was no governmentwide restriction,',
9150:'restrictions aimed at curtailing the influencing of pending legislation appeared in individual appropriation acts in various forms. many of these',
9151:'continue to appear in individual appropriation acts along with the governmentwide restriction.125 a sampling of fiscal year 2003 appropriation acts',
9152:'provisions provided below reveals a variety of versions, many of which do not include the terms publicity and propaganda: “none',
9153:'of the funds made available by this act shall be used in any way, directly or indirectly, to influence congressional',
9154:'action on any legislation or appropriation matters pending before the congress.”126 “ …[no] part of this appropriation shall be used',
9155:'for publicity or propaganda purposes or implementation of any policy including boycott designed to support or defeat legislation pending before',
9156:'congress or any state legislature.”127 “none of the funds in this act shall …be used …to pay for any personal',
9157:'service, advertisement, telegraph …or other device, intended or designed to influence in any manner a member of congress or of',
9158:'a state legislature to favor or oppose by vote or otherwise, any legislation or 124 e.g., treasury, postal service, and',
9159:'general government appropriations act, 1997, pub. l. no. 104208, title vi, § 631, 110 stat. 3009, 3009362 sept. 30, 1996.',
9160:'125 while it is understandable that individual agency situations may require unique language, in some instances the restrictions included in',
9161:'the individual appropriation acts are mere repetition. for example, in 2003 a restriction identical to the governmentwide restriction was also',
9162:'contained in the veterans affairs appropriations act. see veterans affairs and housing and urban development, and independent agencies appropriations, 2003,',
9163:'pub. l. no. 1087, div. k, title iv, § 414, 117 stat. 11, 524 feb. 20, 2003. 126 department of',
9164:'defense appropriations act, 2003, pub. l. no. 107248, § 8012, 116 stat. 1519, 1539 oct. 23, 2002. 127 district of',
9165:'columbia appropriations act, 2003, pub. l. no. 1087, div. c, title iii, § 107a, 117 stat. 11, 122 feb. 20,',
9166:'2003. page 4204 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose appropriation by congress or a state legislature',
9167:'after the introduction of any bill or resolution in congress proposing such legislation or appropriation, or after the introduction of',
9168:'any bill or resolution in a state legislature proposing such legislation or appropriation.”128 “no part of any appropriation contained in',
9169:'this act shall be used, other than for normal and recognized executivelegislative relationships, for publicity or propaganda purposes, for the',
9170:'preparation, distribution, or use of any kit, pamphlet, booklet, publication, radio, television, or video presentation designed to support or defeat',
9171:'legislation pending before the congress or any state legislature, except in presentation to the congress or any state legislature itself.”129',
9172:'if a given policy or activity is affected by pending or proposed legislation, any discussion of that policy or activity',
9173:'by officials will necessarily refer to such legislation, either explicitly or by implication, and will presumably be either in support',
9174:'of or in opposition to it. thus, an interpretation of a pending legislation statute that strictly prohibited expenditures of public',
9175:'funds for dissemination of views on pending legislation would preclude virtually any comment by officials on agency or administration policy',
9176:'or activities. absent a compelling indication of congressional intent, gao has been unwilling to adopt this approach. see, e.g., b270875,',
9177:'supra; u.s. general accounting office, department of education: compliance with the federal advisory committee act and lobbying restrictions, gao/ggd/ogc0018 washington,',
9178:'d.c.: dec. 30, 1999. the comptroller general has construed the “pending legislation” provisions as applying primarily to indirect or “grassroots”',
9179:'lobbying and not to direct contact with members of congress. in other words, the statute prohibits appeals to members of',
9180:'the public suggesting that they in turn contact their elected representatives to indicate support of or opposition to pending legislation,',
9181:'thereby expressly or implicitly urging the legislators to vote in a particular manner. gao and the justice department have interpreted',
9182:'the traditional prohibition “publicity or propaganda purposes designed to 128 department of transportation and related agencies appropriations, 2003, pub. l.',
9183:'no. 1087, div. i, title iii, § 322, 117 stat. 11, 411–412 feb. 20, 2003. 129 departments of labor, health',
9184:'and human services, and education, and related agencies appropriations act, 2003, pub. l. no. 1087, div. g, title v, §',
9185:'503a, 117 stat. 11, 343 feb. 20, 2003. page 4205 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose',
9186:'support or defeat pending legislation” to require an overt appeal to the public. b270875, july 5, 1996. gao concluded in',
9187:'a 1984 study that further statutory restraints on executive branch lobbying did not appear necessary. gao did recommend, however, that',
9188:'the restriction on “grassroots” lobbying be enacted into permanent law. see u.s. general accounting office, no strong indication that restrictions',
9189:'on executive branch lobbying should be expanded, gao/ggd8446 washington, d.c.: mar. 20, 1984. see also u.s. general accounting office, h.r.',
9190:'3078, the federal agency antilobbying act, gao/togc9618 washington, d.c.: may 15, 1996; b206391, b217896, oct. 30, 1985; b206391, july 2,',
9191:'1982. each of these documents comments on proposed legislation that was not enacted. before proceeding to the specific cases, certain',
9192:'threshold concerns should be noted. as noted earlier in the discussion of the simple publicity and propaganda restriction, the discussion',
9193:'that follows interprets the pending legislation provisions in existence at that time. the particular agencies involved may or may not',
9194:'still be subject to the same restriction. or a different version of the restriction may apply that could produce different',
9195:'results. as we have noted, governmentwide restrictions have gone in and out of congressional favor. therefore, it is critical to',
9196:'check the current appropriations acts to determine what restrictions are applicable. the appropriation act restrictions, unless specified to the contrary,',
9197:'require pending legislation. of course, this would include appropriation acts and proposed presidential budgets. b178648, sept. 21, 1973. finally, unless',
9198:'a particular provision specifically includes lobbying at the state level, the legislation must be pending before the u.s. congress, not',
9199:'a state legislature. e.g., b193545, mar. 13, 1979; b193545, jan. 25, 1979. see also u.s. general accounting office, highway safety:',
9200:'nhtsa’s activities page 4206 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose concerning state motorcycle helmet laws, gao/rced97185r',
9201:'washington, d.c.: june 25, 1997.130 5 cases involving “grassroots” lobbying violations a bill was introduced in the 86th congress to',
9202:'prohibit the post office department from transporting first class mail by aircraft on a space available basis. the post office',
9203:'department opposed the bill and embarked on a campaign to defeat it. among the tactics used were letters to postal',
9204:'patrons and “canned” editorials asking the public to contact members of congress to urge opposition to the bill. gao found',
9205:'that this activity violated the antilobbying statute. b116331, may 29, 1961. another violation resulted from the use of a kit',
9206:'entitled “battle of the budget 1973.” the white house at the time was opposed to 15 bills then pending in',
9207:'congress that it felt would exceed the administration’s 1974 budget. white house staff writers assembled a package of materials that',
9208:'were distributed to executive branch officials in an effort to defeat the bills. the kit included statements that people should',
9209:'be urged to write their representatives in congress to support the administration’s opposition to the 15 bills. this, the comptroller',
9210:'general held, violated the publicity and propaganda statute. b178448, apr. 30, 1973. administration budget battles with congress produced another violation',
9211:'in b178648, sept. 21, 1973. this case involved prerecorded news releases provided to radio stations by executive branch agencies. gao',
9212:'reviewed over 1,000 of these releases and while most were proper, gao found several that violated the law. examples of',
9213:'the violations are as follows: “if the president’s position of resisting higher taxes resulting from big spending is to be',
9214:'upheld, the people need to be heard. the voice of america can reach capitol hill and can be a positive',
9215:'persuader.” 130 the report concluded that the national highway traffic safety administration nhtsa did not violate any antilobbying restrictions since',
9216:'the activities were directed at state governments, not congress. within a year after this report, however, congress passed permanent legislation',
9217:'prohibiting the nhtsa from engaging in activity “specifically designed to urge a state or local legislator to favor or oppose',
9218:'the adoption of any specific legislative proposal pending before any state or local legislative body.” see 49 u.s.c. § 30105a.',
9219:'see also department of transportation and related agencies appropriations, 2003, pub. l. no. 1087, § 322, supra. page 4207 gao04261sp',
9220:'appropriations law—vol. i chapter 4 availability of appropriations: purpose “if we are going to have economic stability and fiscal responsibility,',
9221:'we must all support the president’s budget program—and let congress know we support it.” the next two examples illustrate important',
9222:'points: “if we don’t slow down federal spending …we face a 15percent increase in income taxes and more inflation. i',
9223:'don’t think any american wants this. but, in the final analysis the responsibility rests with the voters and the taxpayers.',
9224:'they must let the congress know how they feel on this critical issue.” here, the listener is urged merely to',
9225:'make his or her “views” known to congress. this is nevertheless a violation if the context makes it clear, as',
9226:'in the example, what those “views” are supposed to be. “all those unneeded new bills headed for the presidents desk',
9227:'from congress—all the unworthy federal programs and projects—are guns pointed at the heads of american taxpayers…. right now, congress is',
9228:'getting all kinds of letters from special interest groups. those groups are pleading their own selfish causes. i think congress',
9229:'should hear from all americans on what the president is trying to do whatever their views may be. and i',
9230:'say that regardless of whether those who contact their congressmen happen to be in agreement with me.” the purported disclaimer',
9231:'in the last sentence does not cure the obvious violation. but see b239856, apr. 29, 1991, discussed further below, where',
9232:'the official’s disclaimer statement factored into our finding that the statements made did not constitute prohibited lobbying. despite the fact',
9233:'that the official’s statement on its face was an exhortation for her audience to contact members of congress, we concluded',
9234:'that her comment was a good faith response to an audience members question and was more of a “civics lesson.”',
9235:'furthermore, audience members recalled that the official made explicit “disclaimers” to the effect that she could not advise audience members',
9236:'to take particular actions in support of her agency. a clear violation occurred in b128938, july 12, 1976. the environmental',
9237:'protection agency, as part of an authorized public information program, contracted with a nonprofit organization to publish a newsletter in',
9238:'california entitled “water quality awareness.” one of the articles discussed page 4208 gao04261sp appropriations law—vol. i chapter 4 availability of',
9239:'appropriations: purpose a pending bill that environmentalists opposed. the article went on to name the california representatives on the house',
9240:'committee that was considering the bill and exhorted readers to “[c]ontact your representatives and make sure they are aware of',
9241:'your feelings concerning this important legislation.” as with some of the violations in b178648, the context of the article left',
9242:'no doubt what those “feelings” were supposed to be. the fact that epa did not publish the article directly did',
9243:'not matter since an agency has a duty to insure that its appropriations are not used to violate a statutory',
9244:'prohibition. see also b2029751, nov. 3, 1981; u.s. general accounting office, alleged lobbying activities: office for substance abuse prevention, gao/hrd93100',
9245:'washington, d.c.: may 4, 1993 grantee violated statutory restriction by using grant funds to encourage grassroots lobbying.131 in b285298, may',
9246:'22, 2000, the white house engaged in extensive outreach efforts to business, labor, environmental, and other groups in order to',
9247:'achieve enactment of legislation establishing permanent normal trade relations for china. after reviewing hundreds of documents we identified one email',
9248:'communication that constituted grassroots lobbying. the email, sent by an agriculture employee serving on the interagency working group established by',
9249:'the white house, went to two major farmers’ organizations. the email forwarded an attached message from a commerce employee also',
9250:'serving on the working group reporting that a certain member of the house of representatives had not heard from any',
9251:'of the farmers in his district on the issue of trade with china. the forwarding email stated: “we need to',
9252:'work on this asap. [the member] needs to hear from the farmers in his district.” the fact that the house',
9253:'member was already planning on supporting the legislation did not impact our conclusion that the email on its face directly',
9254:'appealed to large farm organizations to contact a member of congress to support the legislation. two other cases in which',
9255:'violations were found are b2122351, nov. 17, 1983, and u.s. general accounting office, improper lobbying activities by the department of',
9256:'defense on the proposed procurement of the c5b aircraft, gao/afmd82123 washington, d.c.: sept. 29, 1982, both of which are summarized',
9257:'in our previous discussion of 18 u.s.c. § 1913. 131 for a detailed discussion of the prohibition against the use',
9258:'of grant funds for lobbying activities, see section c.11.d of this chapter. page 4209 gao04261sp appropriations law—vol. i chapter 4',
9259:'availability of appropriations: purpose it is not necessary for a statement to explicitly refer to the particular piece of pending',
9260:'legislation. thus, a lobbying campaign using appropriated funds urging the public to write to members of congress to support a',
9261:'strong merchant marine at a time when cargo preference legislation is pending violates the law. b192746o.m., mar. 7, 1979. the',
9262:'fact that an article did not refer to specific pending legislation was, however, a factor in our determination that the',
9263:'agency did not engage in prohibited grass roots lobbying. gao/hrd93100. 6 pending legislation: cases in which no violation was found',
9264:'as indicated above, gao has consistently taken the position that the pending legislation statute does not prohibit direct communication, solicited',
9265:'or unsolicited, between agency officials and members of congress. this is true even where the contact is an obvious attempt',
9266:'to influence legislation. thus, gao concluded that the pending legislation statute was not violated in the following cases: contacts with',
9267:'members of congress by federal judges and legislative liaison activities by the judicial conference of the united states. 63 comp.',
9268:'gen. 624 1984. visits to members of congress by national war college students as part of a seminar on the',
9269:'legislative process. b209584, jan. 11, 1983. director of the office of management and budget’s letter to all members of the',
9270:'house of representatives urging opposition to a disapproval resolution on a presidential reorganization plan. b192658, sept. 1, 1978. see also',
9271:'b200250, nov. 18, 1980 agency sent position paper to members of congress opposing particular piece of pending legislation; b1644975, mar.',
9272:'10, 1977 entertainment in form of dinners for members of congress; b114823, dec. 23, 1974 personal visits to capitol hill',
9273:'by agency officials during floor debate on authorizing legislation, at request of congressional proponents of the legislation; b164786, nov. 4,',
9274:'1969 cruises with members of congress on presidential yacht, paid for from entertainment appropriation; b145883, oct. 10, 1967 unsolicited letter',
9275:'to members of congress from agency head urging support for continuation of agency programs; b93353, sept. 28, 1962 telegram sent',
9276:'by agency head to all members of congress. page 4210 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose',
9277:'a government contractor lobbying with its own corporate i.e., nonfederal funds would generally not violate the appropriation act restriction. however,',
9278:'applicable contract cost principles may restrict or prohibit reimbursement. see, e.g., federal acquisition regulation, 48 c.f.r. § 31.20522; b218952, aug.',
9279:'21, 1985; u.s. general accounting office, nuclear test lobbying: doe regulations for contractors need reevaluation, gao/rced8825br washington, d.c.: oct. 9,',
9280:'1987. in addition, there may be legislation applicable to contractor lobbying.132 also as indicated above, an agency will not violate',
9281:'the pending legislation statute by disseminating material to the public that is essentially expository in nature. even if the material',
9282:'is promotional, there is no violation, at least of the pending legislation statute, as long as it is not a',
9283:'clear appeal to members of the public to contact their elected representatives.133 again, several cases will illustrate. for example, the',
9284:'department of transportation transportation set up displays on u.s. capitol grounds of passenger cars equipped with passive restraint systems airbags.',
9285:'transportation employees at the displays distributed brochures, explained the devices, and answered questions from members of congress and the public.',
9286:'all this was done while legislation was pending to prohibit mandatory enforcement of the airbag standard. considering the timing and',
9287:'location of the displays, one would have to be pretty stupid not to see this as an obvious lobbying ploy,',
9288:'that did not make it illegal since there was no evidence that transportation urged members of the public to contact',
9289:'their elected representatives. thus, since it was not illegal for transportation to advocate the use of airbags or to communicate',
9290:'with congress directly, there was no violation. b139052, apr. 29, 1980. the apparent intent alone is not enough; it must',
9291:'be translated into action. 132 one of the previously cited pending legislation statutes—the laborhealth & human services provision—has an additional',
9292:'sentence, not included in our quotation, barring the use of appropriated funds to pay the salary or expenses of any',
9293:'grant or contract recipient, or agent of such recipient, related to any activity designed to influence pending legislation. in addition,',
9294:'31 u.s.c. § 1352, enacted in october 1989 and summarized later in our discussion of lobbying with grant funds, includes',
9295:'governmentwide restrictions on certain lobbying activities by contractors. 133 the fact patterns of some of the examples that follow may',
9296:'have yielded violations of another restriction on legislative lobbying, had the provision applied. the next section will discuss this restriction,',
9297:'typically included in the department of interior appropriations act, which prohibits activity that falls short of an overt appeal to',
9298:'the public to contact members of congress. page 4211 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose the',
9299:'office for substance abuse prevention osap published “prevention pipeline” as part of its statutory duties to act as a clearinghouse',
9300:'for drug and alcohol abuse material and to educate the public. osap included in the publication items submitted to it',
9301:'with the following disclaimer: “publication of information and products does not imply endorsement by osap or the federal government.” one',
9302:'item that was submitted to and published by osap informed readers of an “activist’s guide” for communities developed by an',
9303:'organization that lobbied for legislation requiring warning labels on alcoholic beverages. while the item went on to describe the guide',
9304:'as helping people with writing to u.s. senators to urge support of legislation, it did not make any reference to',
9305:'the specific legislation that was pending before congress at the time, nor did it expressly endorse the idea of writing',
9306:'to members of congress in support of legislation. u.s. general accounting office, alleged lobbying activities: office for substance abuse prevention,',
9307:'gao/hrd93100 washington, d.c.: may 4, 1993. similarly, the statute was not violated by the following actions: speech by secretary of',
9308:'the air force urging defense contractors to direct their advertising toward convincing the public of the need for a strong',
9309:'defense rather than promoting particular weapon systems manufactured by their companies. speech did not refer to legislation nor urge anyone',
9310:'to contact congress. b216239, jan. 22, 1985. bumper stickers purchased by the department of transportation and affixed to government vehicles',
9311:'urging compliance with 55 mph speed limit. b212252, july 15, 1983. various trips by the district of columbia police chief',
9312:'during which he made speeches supporting the administration’s law enforcement policy. b118638, aug. 2, 1974. statements by cabinet members, distributed',
9313:'to news media, which discussed pending legislation but were limited to an exposition of the administration’s views. b178648, dec. 27,',
9314:'1973. mailings by the national credit union administration to federally chartered credit unions consisting of reprints from the congressional record',
9315:'giving only one side of a controversial legislative issue. b139458, jan. 26, 1972. page 4212 gao04261sp appropriations law—vol. i chapter',
9316:'4 availability of appropriations: purpose statements by deputy assistant secretary for the mining safety and health administration msha before mining',
9317:'industry executives concerning agency’s opposition to legislative proposal to merge msha with osha did not include urging anyone to contact',
9318:'members of congress. u.s. general accounting office, msha lobbying, gao/hehs969r washington, d.c.: oct. 19, 1995. remarks made by secretary of',
9319:'education in meetings with members of education organizations and presidents of education associations included factual presentation of budget proposals relating',
9320:'to education but not requests for lobbying assistance. u.s. general accounting office, department of education: compliance with the federal advisory',
9321:'committee act and lobbying restrictions, gao/ggd/ogc00 18 washington, d.c.: dec. 23, 1999. housing and urban development report and the letter',
9322:'transmitting report to agency constituencies criticized proposed budget cuts as having “devastating impact on families and communities nationwide” but did',
9323:'not contain any express appeals that members of the public contact their congressional representatives. b284226.2, aug. 17, 2000. see also',
9324:'b270875, july 5, 1996 labor department publications entitled “america’s job fax,” supporting president’s employment legislation; b147578, nov. 8, 1962 white',
9325:'house regional conferences; b150038, nov. 2, 1962 department of agriculture press release; b148206, mar. 20, 1962 radio and television announcements',
9326:'by commerce department supporting foreign trade legislation. 7 pending legislation: providing assistance to private lobbying groups another type of “lobbying”',
9327:'activity gao has found improper is the use of appropriated funds to provide assistance to private lobbying groups. this is',
9328:'largely an outgrowth of the concept that an agency should not be able to do indirectly that which it cannot',
9329:'do directly. in 1977, the office of the special assistant to the president for consumer affairs and the office of',
9330:'consumer affairs within the then department of health, education and welfare hew mounted an active campaign to obtain passage of',
9331:'legislation to establish a consumer protection agency. as part of the campaign, the special assistant had instructed the office of',
9332:'consumer affairs to informally clear its efforts with certain “public interest lobby members.” in addition, two of the consumer lobby',
9333:'groups asked hew page 4213 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose to provide material illustrating situations',
9334:'where a consumer protection agency could have had an impact had it been in existence. before implementing the campaign, however,',
9335:'the office of consumer affairs sought advice from the hew general counsel, who advised against certain elements of the plan,',
9336:'including the two items mentioned. since, pursuant to the hew general counsel’s advice, the more egregious elements of the plan',
9337:'were not carried out, the comptroller general concluded that no laws were violated. however, the comptroller general pointed out that',
9338:'the publicity and propaganda statute would prohibit the use of appropriated funds to develop propaganda material to be given to',
9339:'private lobbying organizations to be used in their efforts to lobby congress. an important distinction must be made. there would',
9340:'be nothing wrong with servicing requests for information from outside groups, lobbyists included, by providing such items as stock education',
9341:'materials or position papers from agency files, since this material would presumably be available in any event under the freedom',
9342:'of information act. the improper use of appropriated funds arises when an agency assigns personnel or otherwise provides administrative support',
9343:'to prepare material not otherwise in existence to be given to a private lobbying organization. b129874, sept. 11, 1978. see',
9344:'also 66 comp. gen. 707, 712 1987, drawing the same distinction in the context of 18 u.s.c. § 1913. in',
9345:'another example, the maritime administration “marad” had become intimately involved with the national maritime council, a trade association of ship',
9346:'operators and builders. marad staff performed the administrative functions of the council at marad headquarters and regional offices. in 1977,',
9347:'at a time when cargo preference legislation was pending in congress, the council, with marad’s active assistance, undertook an extensive',
9348:'advertising campaign in national magazines and on television advocating a strong u.s. merchant marine. some of the advertisements encouraged members',
9349:'of the public to contact their elected representatives to urge them to support a strong merchant fleet. reviewing the situation,',
9350:'gao concluded that marad had violated the publicity and propaganda statute by expending appropriated funds to provide administrative support to',
9351:'the council in the form of staff time, supplies, and facilities, when it knew the council was attempting to influence',
9352:'legislation pending before congress. see b192746o.m., mar. 7, 1979; u.s. general accounting office, the maritime administration and the national maritime',
9353:'council—was their relationship appropriate? ced7991 washington, d.c.: may 18, 1979. page 4214 gao04261sp appropriations law—vol. i chapter 4 availability of',
9354:'appropriations: purpose in b133332, mar. 28, 1977, the smithsonian institution had prepared an exhibit entitled “the tallgrass prairie: an american',
9355:'landscape” and displayed it at a premiere showing for the benefit of the tallgrass prairie foundation, a nonprofit organization. while',
9356:'appropriated funds were used to prepare the exhibit, none were used for the premiere showing itself since, under the smithsonian’s',
9357:'traveling exhibit program, administrative costs are paid by the host organization. the problem arose because the tallgrass prairie foundation shared',
9358:'a large part of its membership with a lobbying organization known as “save the tallgrass prairie, inc.” there is no',
9359:'cause that does not have its lobbyists. in addition, a leading member of both organizations had actually created the exhibit',
9360:'under contract with the smithsonian. however, the exhibit itself was noncontroversial and the foundation had an independent legal existence. thus,',
9361:'since no lobbying took place at the premiere showing, and since any lobbying by “save the tallgrass” or by the',
9362:'exhibits creator could not be imputed to the foundation or to the smithsonian, gao concluded that the smithsonian had not',
9363:'used its appropriations for any improper indirect lobbying.134 8 promotion of legislative proposals: prohibited activity short of grass roots lobbying',
9364:'since 1977, the following restriction has been included in every interior department appropriations act: “no part of any appropriation contained',
9365:'in this act shall be available for any activity or the publication or distribution of literature that in any way',
9366:'tends to promote public support or opposition to any legislative proposal on which congressional action is not complete.”135 134 see',
9367:'also u.s. general accounting office, department of education: compliance with the federal advisory committee act and lobbying restrictions, gao/ggd/ogc0018 washington,',
9368:'d.c.: dec. 23, 1999, for a discussion of another instance in which gao found no evidence that an agency was',
9369:'involved in providing improper assistance to lobbying groups. 135 department of interior and related agencies appropriations, 2003, pub. l. no.',
9370:'1087, div. f, title iii, § 302, 117 stat. 11, 270 feb. 20, 2003. originally the provision concluded with the',
9371:'phrase “in accordance with the act of june 25, 1948 18 u.s.c. § 1913.” while this language was eventually eliminated,',
9372:'gao concluded that its deletion had no effect on the interpretation of the restriction. b262234, dec. 21, 1995. page 4215',
9373:'gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose the committee report accompanying what ultimately became the interior restriction',
9374:'explained the committee’s concern over “certain public information activities being promoted by [some agencies] that tend to promote pending legislative',
9375:'proposals to set aside certain areas in alaska for national parks, wildlife refuges, national forest and other withdrawals.” the committee',
9376:'referred to the colorful brochures printed and actively distributed by these agencies, extolling the benefits of such proposals, which as',
9377:'a result tended to promote certain legislative goals of these agencies. the committee considered these activities to be, at a',
9378:'minimum, violations of the intent of 18 u.s.c. § 1913. at the same time the committee cautioned that the language',
9379:'“should not be construed as an impediment on the agencies ability to respond to public information inquiries.”136 the interior restriction',
9380:'has been interpreted to prohibit both grassroots lobbying activity, proscribed by both 18 u.s.c. § 1913 and the pending legislation',
9381:'restriction, and activity that falls short of such activity. in describing the prohibited activity as that which “in any way',
9382:'tends to promote public support or opposition emphasis added” to legislation, the restriction is designed to cover particularly egregious examples',
9383:'of lobbying even though the material or activity stops short of explicitly soliciting a member of the public to contact',
9384:'his or her member of congress in support or opposition of pending legislation. see 59 comp. gen. 115 1979; b284226.2,',
9385:'aug. 17, 2000. we have found a number of instances where agencies covered by the interior provision avoided grassroots lobbying',
9386:'but went beyond appropriate information dissemination and violated the interior restriction: a mass mailing by the national endowment for the',
9387:'arts nea of an information package supporting the livable cities program implicitly advocated support of the appropriation for that nea',
9388:'program. although the literature did not directly exhort readers to lobby congress, its tenor was clearly designed to promote public',
9389:'support for the program and the mailing was timed to reach the public just before house reconsideration of a prior',
9390:'refusal to fund the program. 59 comp. gen. 115 1979. remarks made by a fish and wildlife service employee at',
9391:'a press conference called to generate opposition to a pending amendment to 136 s. rep. no. 95276, at 4–5 1977.',
9392:'page 4216 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose the clean water act and timed to coincide',
9393:'with the congressional committee’s active consideration, tended to promote public opposition to the legislative proposal. while the official did not',
9394:'urge members of the public to contact their members of congress, he stated, “we cannot afford to roll back protection”',
9395:'for wetlands, which he believed the legislation would do. b262234, dec. 21, 1995. forest service officials waged an aggressive campaign',
9396:'to promote public support for a budget proposal seeking to change the way certain forest service payments to states are',
9397:'calculated. briefing packages, used by officials in talking to local public officials likely to be concerned about funding, were highly',
9398:'supportive of the proposal, emphasizing the benefits of reforming forest service payments to states. based on the response of some',
9399:'local officials, who indicated they would contact their congressional representatives, the briefing efforts were clearly successful at promoting support for',
9400:'the payment proposal. b281637, may 14, 1999.137 in analyzing whether a violation has occurred, a variety of factors must be',
9401:'considered, including the timing, setting, audience, content, and the reasonably anticipated effect of the questioned activity. see u.s. general accounting',
9402:'office, h.r. 3078, the federal agency antilobbying act, gao/togc9618 may 15, 1996.138 intent can also be an important factor to',
9403:'consider when presented with a particularly close case. as we have noted, “there is a very thin line between the',
9404:'provision of legitimate information in response to public inquiries and the provision of information in response to the same requests',
9405:'which tends to promote public support or opposition to pending legislative proposals.” 59 comp. gen. 115 1979. navigating this thin',
9406:'line may be difficult for agencies, which cannot always prevent or even anticipate public response. in b239856, apr. 29, 1991,',
9407:'gao relied on the demonstrated intent of the national endowment for the arts nea officials engaging in the questioned activities,',
9408:'in concluding that the agency had not violated the 137 see also u.s. general accounting office, alleged unauthorized use of',
9409:'appropriated moneys by interior employees, ced80128 washington, d.c.: aug. 13, 1980. 138 this testimony concerned proposed governmentwide legislation modeled on',
9410:'the interior restriction. the proposed legislation did not pass. page 4217 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations:',
9411:'purpose interior restriction. one aspect of this decision involved an nea official’s remarks at an arts conference. in response to',
9412:'a question from the audience concerning what the audience could do to support nea, the official responded that they could',
9413:'contact their congressional representatives. gao’s investigation concluded that there was no intent to promote. the official’s response was incidental to',
9414:'her presentation and not part of any plan to generate action on the part of her audience. the official’s answer',
9415:'was viewed as more of a civics lesson, informational in nature, rather than an exhortation to contact congress. 9 dissemination',
9416:'of political or misleading information generally speaking, funds appropriated to carry out a particular program would not be available for',
9417:'political purposes, that is, for a propaganda effort designed to aid a political party or candidate. see b147578, nov. 8,',
9418:'1962. if for no other reason, such an expenditure would be improper as a use of funds for other than',
9419:'their intended purpose in violation of 31 u.s.c. § 1301a. however, the publicity and propaganda statute does not provide adequate',
9420:'guidelines to distinguish between legitimate and purely political activities and is therefore applicable to “political” activities only to the extent',
9421:'that the activities would otherwise constitute a violation. see b130961, oct. 26, 1972. in more general terms, it is always',
9422:'difficult to find that conduct is so purely political as to constitute a purpose violation. as stated in b144323, nov.',
9423:'4, 1960: “[the question is] whether in any particular case a speech or a release by a cabinet officer can',
9424:'be said to be so completely devoid of any connection with official functions or so political in nature that it',
9425:'is not in furtherance of the purpose for which government funds were appropriated, thereby making the use of such funds',
9426:'…unauthorized. this is extremely difficult to determine in most cases as the lines separating the nonpolitical from the political cannot',
9427:'be precisely drawn. “…as a practical matter, even if we were to conclude that the use of appropriated funds for',
9428:'any given speech or its release was unauthorized, the amount involved would be small, and difficult to ascertain; and the',
9429:'results of any corrective action might well be more technical than real.” page 4218 gao04261sp appropriations law—vol. i chapter 4',
9430:'availability of appropriations: purpose apart from considerations of whether any particular law has been violated, gao has taken the position',
9431:'that the government should not disseminate misleading information. on occasion, the comptroller general has characterized publications as propaganda and attacked',
9432:'them from an audit perspective. in 1976, the former energy research and development administration erda published a pamphlet entitled “shedding',
9433:'light on facts about nuclear energy.” ostensibly created as part of an employee motivational program, erda printed copies of the',
9434:'pamphlet far in excess of any legitimate program needs, and inundated the state of california with them in the months',
9435:'preceding a nuclear safeguards initiative vote in that state. the pamphlet had a strong pronuclear bias and urged the reader',
9436:'to “let your voice be heard.” on the legal side, the pamphlet did not violate any antilobbying statute because applicable',
9437:'restrictions did not extend to lobbying at the state level. b130961o.m., sept. 10, 1976. however, gao’s review of the pamphlet',
9438:'found it to be oversimplified and misleading. gao characterized it as propaganda not suitable for distribution to anyone, employees or',
9439:'otherwise, and recommended that erda cease further distribution and recover and destroy any undistributed copies. see u.s. general accounting office,',
9440:'evaluation of the publication and distribution of “shedding light on facts about nuclear energy,” emd7612 washington, d.c.: sept. 30, 1976.',
9441:'in a later report, gao reviewed a number of publications related to the clinch river breeder reactor project, a cooperative',
9442:'government/industry demonstration project, and found several of them to be oversimplified and distorted propaganda, and as such questionable for distribution',
9443:'to the public. however, the publications were produced by the private sector components of the project and paid for with',
9444:'utility industry contributions and not with federal funds. while gao was thus powerless to recommend termination of the offending publications,',
9445:'it nevertheless recommended that the department of energy work with the private sector components in an effort to eliminate this',
9446:'kind of material, or at the very least insure that such publications include a prominently displayed disclaimer statement making it',
9447:'clear that the material was not government approved. u.s. general accounting office, problems with publications related to the clinch river',
9448:'breeder reactor project, emd7774 washington, d.c.: jan. 6, 1978. d. lobbying with grant funds the use of grant funds by',
9449:'a federal grantee for lobbying presents somewhat more complicated issues. on the one hand, there is the principle, noted in',
9450:'page 4219 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose various contexts throughout this publication, that an agency',
9451:'should not be able to do indirectly what it cannot do directly. thus, if an agency cannot make a direct',
9452:'expenditure of appropriated funds for certain types of lobbying, it should not be able to circumvent this restriction by the',
9453:'simple device of passing the funds through to a grantee. yet on the other hand, there is the seemingly countervailing',
9454:'rule that where a grant is made for an authorized grant purpose, grant funds in the hands of the grantee',
9455:'largely lose their identity as federal funds and are no longer subject to many of the restrictions on the direct',
9456:'expenditure of appropriations. see b289801, dec. 30, 2002 holding that when the department of education makes grant awards during the',
9457:'period of availability of the funds to be used, education’s grant awards are in compliance with the bona fide needs',
9458:'rule even when appropriations available for only one fiscal year are used to fund multiyear grants. in some instances, congress',
9459:'has dealt with the problem by legislation. for example, legislation, commonly known as the byrd amendment and codified at 31',
9460:'u.s.c. § 1352, imposes limited governmentwide restrictions. subsection 1352a1 provides: “none of the funds appropriated by any act may be',
9461:'expended by the recipient of a federal contract, grant, loan, or cooperative agreement to pay any person for influencing or',
9462:'attempting to influence an officer or employee of any agency, a member of congress, an officer or employee of congress,',
9463:'or an employee of a member of congress in connection with any federal action described in paragraph 2 of this',
9464:'subsection.” the actions identified in paragraph 2 are the awarding of any federal contract; the making of any federal grant',
9465:'or loan; the entering into of any cooperative agreement; and the extension, continuation, renewal, amendment, or modification of any federal',
9466:'contract, grant, loan, or cooperative agreement. the law includes detailed disclosure requirements and civil penalties. subsection d1c stresses that section',
9467:'1352 should not be construed as permitting any expenditure prohibited by any other provision of law. thus, section 1352 supplements',
9468:'other antilobbying statutes; it does not supersede them. subsection b6 of 31 u.s.c. § 1352 directs the office of management',
9469:'and budget omb to issue guidance for agency implementation. omb published interim final guidance entitled “governmentwide guidance for page 4220',
9470:'gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose new restrictions on lobbying” on december 20, 1989 54 fed.',
9471:'reg. 52306, supplemented on june 15, 1990 55 fed. reg. 24540, and amended on january 15, 1992 57 fed. reg.',
9472:'1772 and january 19, 1996 61 fed. reg. 1412. an interim final rule for grants was issued jointly by omb',
9473:'and 29 grantor agencies as a common rule on february 26, 1990 55 fed. reg. 6736. for contracts, see subpart',
9474:'3.8 of the federal acquisition regulations. gao has addressed the application of the byrd amendment to federal contractors in the',
9475:'context of bid protests but has not had occasion to apply it to federal grant recipients. see 71 comp. gen.',
9476:'281 1992 communication between bidder’s “regularly employed” employee and government engineer was not an attempt to influence procuring agency in',
9477:'connection with a federal contract and therefore did not violate the byrd amendment; 71 comp. gen. 81 1991 byrd amendment',
9478:'does not require disclosure of reasonable compensation to regularly employed employees; 69 comp. gen. 604 1990 contractor lobbying activity was',
9479:'not directed at award of current contract and therefore was not required to be disclosed under the byrd amendment; b246304.8',
9480:'and b246304.9, may 4, 1993 bidder’s lobbying to have legislation changed, regardless of how funded, did not violate the byrd',
9481:'amendment. more recently, the lobbying disclosure act of 1995,139 as amended, 2 u.s.c. §§ 1601 et seq., provides that organizations',
9482:'described in section 501c4 of the internal revenue code140 which engage in lobbying activities are not eligible to receive federal',
9483:'grants. 2 u.s.c. § 1611. the act, at 2 u.s.c. § 16027, defines “lobbying activities” to mean: “[l]obbying contacts and',
9484:'efforts in support of such contacts, including preparation and planning activities, research and other background work that is intended, at',
9485:'the time it is performed, for use in contacts, and coordination with the lobbying activities of others.” the act, at',
9486:'2 u.s.c. § 16028, further defines “lobbying contact” to mean communications with covered federal officials. as such, the act does',
9487:'not 139 pub. l. no. 10465, 109 stat. 691 dec. 19, 1995. 140 certain civic leagues, social welfare organizations, and',
9488:'local associations of employees. 26 u.s.c. § 501c4. page 4221 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose',
9489:'prevent “grassroots” lobbying activities by federal grants recipients as that term is discussed earlier in this chapter in section c.11.c.141',
9490:'another example is the legislation governing the legal services corporation. under the legal services corporation act, recipients of funds, both',
9491:'contractors and grantees, may not use the funds directly or indirectly to attempt to influence the passage or defeat of',
9492:'legislation. the prohibition covers legislation at the state and local level as well as federal legislation. the statute permits three',
9493:'exceptions: 1 recipients may testify before and otherwise communicate with legislative bodies upon request, 2 they may initiate contact with',
9494:'legislative bodies to express the views of the corporation on legislation directly affecting the corporation, and 3 they may engage',
9495:'in certain otherwise prohibited lobbying activities when necessary to the proper representation of an eligible client. 42 u.s.c. § 2996fa5.142',
9496:'for a general discussion of these provisions, see b129874o.m., oct. 30, 1978. see also b202569, apr. 27, 1981; regional management',
9497:'corp. v. legal services corp., 186 f.3d 457 4th cir. 1999 generally discussing 42 u.s.c. § 2996fa5 as part of',
9498:'finding that there is no private right of action to challenge the legal services corporation’s decision that its grantee did',
9499:'not violate antilobbying provision. three 1981 cases illustrate the application of the legal services corporation statute. in one case, the',
9500:'board of aldermen for the city of nashua, new hampshire, was considering a resolution to authorize a “food stamp workfare”',
9501:'demonstration project. an attorney employed by the new hampshire legal assistance group, a legal services corporation grantee, wrote to members',
9502:'of the board urging them to reject the resolution. since the letter was not related to the representation of any',
9503:'specific client or group of clients but rather had been selfinitiated by the attorney, the use of federal funds to',
9504:'prepare and distribute the letter was illegal. b201928, mar. 5, 1981. 141 see also u.s. general accounting office, federal lobbying:',
9505:'differences in lobbying definitions and their impact, gao/ggd9938 washington, d.c.: apr. 15, 1999 for further discussion of the act. 142',
9506:'similar provisions, found in 42 u.s.c. § 2996ec, apply to the corporation itself. an illustrative case is b231210, june 7,',
9507:'1988, aff’d upon reconsideration, b231210, june 4, 1990, holding that the corporation is not authorized to retain a private law',
9508:'firm to lobby congress on its behalf. page 4222 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose in',
9509:'the second case, 60 comp. gen. 423 1981, the corporation and its grantees conducted a lobbying campaign to drum up',
9510:'support for the corporation’s reauthorization and appropriation legislation. the corporation argued that the actions were permissible under the exception authorizing',
9511:'contact with legislative bodies on legislation directly affecting the corporation. while recognizing that the statute permitted direct self initiated contact',
9512:'in these circumstances, gao reviewed the legislative history and concluded that the exception did not permit grassroots lobbying either by',
9513:'the corporation itself or by its grantees. in the third case, the managing attorney of a legal services corporation lsc',
9514:'grantee made a mass mailing of a form letter to local attorneys. the letter solicited their support for continuation of',
9515:'the lsc program and urged them to contact a local congressman opposed to reauthorization of the lsc to try to',
9516:'persuade him to change his vote. this too constituted impermissible grassroots lobbying. b202787, dec. 29, 1981.143 gao also found the',
9517:'statute was violated when a grantee used lsc grant funds to oppose the confirmation of judge robert bork to the',
9518:'united states supreme court. the finding was based largely on lsc regulations that broadly define “legislation” to include action on',
9519:'appointments. b230743, june 29, 1990. another provision in the lsc enabling legislation prohibits both the corporation and its grantees from',
9520:'contributing or making available “corporate funds or program personnel or equipment for use in advocating or opposing any ballot measures,',
9521:'initiatives, or referendums.” 42 u.s.c. § 2996ed4. the corporation and one of its grantees violated this one by providing funds',
9522:'and personnel for a campaign to defeat a ballot measure in california. 62 comp. gen. 654 1983. in addition to',
9523:'the lsc’s enabling legislation, appropriation acts providing funds for the corporation also include restrictions. beginning in 1978, the corporation’s appropriations',
9524:'contained a restriction that prohibited the use of corporation funds for publicity or propaganda designed to support or defeat legislation',
9525:'pending before congress or any state legislature. while serving largely to reemphasize the prohibitions contained in the corporation’s enabling legislation,',
9526:'the restriction made it clear that the 143 government lobbying has a tendency to adjust to changes in the political',
9527:'climate. a 1988 case, b231210, june 7, 1988, found the lsc lobbying to reduce its appropriations. page 4223 gao04261sp appropriations',
9528:'law—vol. i chapter 4 availability of appropriations: purpose exception for the proper representation of eligible clients did not extend to',
9529:'grass roots lobbying. see 60 comp. gen. 423 1981; b163762, nov. 24, 1980. since 1996 the lsc’s appropriations have gone',
9530:'beyond restricting grantee use of federal funds for lobbying activities to a broader prohibition of the corporation’s providing funds to',
9531:'any grantee “that attempts to influence the passage or defeat of any legislation, constitutional amendment, referendum, initiative, or any similar',
9532:'procedure of the congress or a state or local legislative body.”144 in 2001, the supreme court struck down a restriction',
9533:'contained in the corporation’s 1996 appropriation on the use of the corporation’s funds for lobbying purposes. legal services corp. v.',
9534:'velazquez, 531 u.s. 533 2001. the court found that provisions, which sought to restrict efforts toward welfare reform, were unconstitutional.',
9535:'see also legal aid society of hawaii v. legal services corp., 145 f.3d 1017 9th cir., cert. denied, 525 u.s.',
9536:'1015 1998 for additional background on appropriation act restrictions. still another example of legislation expressly applicable to grantees is discussed',
9537:'in b2027871, may 1, 1981. the appropriation act providing funds for the community services administration csa contained a provision which',
9538:'prohibited the use of funds “to pay the salary or expenses of any grant or contract recipient …to engage in',
9539:'any activity designed to influence legislation or appropriations pending before the congress.” gao found this provision violated when a local',
9540:'community action agency used grant funds for a mass mailing of a letter to members of the public urging them',
9541:'to write to their congressmen to oppose abolition of the agency. in addition, csa had issued a regulation purporting to',
9542:'exempt csa grantees from the appropriation act restriction. finding that csa had exceeded its authority, the comptroller general recommended that',
9543:'csa rescind its 144 ascertaining applicable lobbying restrictions often requires a certain level of patience. the corporation’s 2003 appropriation refers',
9544:'back to the restriction contained in its 1996 appropriation by prohibiting the use of funds “for any purpose prohibited or',
9545:'limited by, or contrary to any of the provisions of, sections 501, 502, 503, 504, 505, and 506 of public',
9546:'law 105119 . . .” pub. l. no. 1087,117 stat. 11, 96, 97 feb. 20, 2003; pub. l. no. 105119,',
9547:'111 stat. 2440, 2510 nov. 26, 1997. public law 105119 contains the corporation’s 1998 appropriation, which itself refers back to',
9548:'the corporation’s 1996 appropriation, contained in the omnibus consolidated rescissions and appropriations act of 1996, pub. l. no. 104134, §',
9549:'504a4, 110 stat. 1321, 132153 apr. 26, 1996. page 4224 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose',
9550:'ruling. the justice department also found the csa regulations invalid, construing the statute as constituting “an unqualified prohibition against lobbying',
9551:'by federal grantees” and not merely a restriction on grassroots lobbying. 5 op. off. legal counsel 180 1981. the provision',
9552:'discussed in the preceding paragraph was also violated when a university, using grant funds received from the department of education,',
9553:'encouraged students to write to members of congress to urge their opposition to proposed cuts in student financial aid programs.',
9554:'u.s. general accounting office, improper use of federal student aid funds for lobbying activities, gao/hrd82108 washington, d.c.: aug. 13, 1982.',
9555:'an almost identical, subsequent provision was violated when a grantee of the office of substance abuse prevention used grant funds',
9556:'to host a conference used as a forum for grassroots lobbying. another grantee did not violate the provision, however, because',
9557:'its lobbying efforts related to a state legislature matter. u.s. general accounting office, alleged lobbying activities: office for substance abuse',
9558:'prevention, gao/hrd93100 washington, d.c.: may 4, 1993. the fiscal year 2003 labor, health and human services, and education, and related',
9559:'agencies appropriation act contains a version of this restriction, which has been expanded to prohibit such lobbying activities at the',
9560:'state level. pub. l. no. 1087, § 503b, 117 stat. 11, 343 feb. 20, 2003. the question of lobbying with',
9561:'grant funds becomes more difficult when the situation is not covered by statute and applicable appropriation act restrictions do not',
9562:'expressly cover grantees. until late in 1981, the question of whether appropriation act restrictions, silent as to grantees, applied to',
9563:'grantee expenditures had not been definitively addressed in a decision of the comptroller general. an early case held that telegrams',
9564:'to members of congress by state agencies funded by labor department grants constituted an improper use of federal funds where',
9565:'they were clearly designed to influence pending legislation. b76695, june 8, 1948. this case predated appropriation act restrictions and was',
9566:'decided under 18 u.s.c. § 1913.145 the concept of applying the prohibition to grantee expenditures would arguably be the same',
9567:'under the appropriation act restrictions. in a 1977 145 while 18 u.s.c. § 1913 has been regarded as applicable only',
9568:'to officers and employees of the federal government and not to contractors or grant recipients, this interpretation has not been',
9569:'challenged since the statute was amended in 2002 by pub. l. no. 107273, § 205b, 116 stat. 1758, 1778 nov.',
9570:'2, 2002. see b214455, oct. 24, 1984 citing a may 24, 1983, letter to gao from the justice department’s criminal',
9571:'division. page 4225 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose letter, gao noted the principle that funds',
9572:'in the hands of a grantee largely lose their identity as federal funds and said that the applicability of the',
9573:'publicity and propaganda statute was therefore “questionable.” b158371, nov. 11, 1977 nondecision letter. a 1978 letter to a member of',
9574:'the senate said that the issue should be addressed on a casebycase basis. b129874, aug. 15, 1978. in b128938, july',
9575:'12, 1976, gao said that an agency has a responsibility to insure that its appropriations are not used to violate',
9576:'the antilobbying statute. while the case involved expenditures by a contractor, the principle would seemingly apply as well to a',
9577:'grantee. finally, in b2029751, nov. 3, 1981, the comptroller general resolved the uncertainty, applied the concept of b128938, and concluded',
9578:'that: “federal agencies and departments are responsible for insuring that federal funds made available to grantees are not used contrary',
9579:'to [the publicity and propaganda] restriction.” the case involved the los angeles downtown people mover authority, a grantee of the',
9580:'urban mass transportation administration umta, department of transportation. fearing that its funding was in jeopardy, the authority prepared and distributed',
9581:'a newsletter urging readers to write to their elected representatives in congress to support continued funding for the people mover',
9582:'project. the comptroller general found that this newsletter, to the extent it involved umta grant funds, violated the anti lobbying',
9583:'statute. similarly, in 1996, gao determined that the state of nevada improperly used grant funds in violation of a broad',
9584:'provision found in the annual energy and water development appropriation acts prohibiting the use of federal funds to influence legislation',
9585:'and other lobbying activities.146 see u.s.general accounting office, nuclear waste: nevada’s use of nuclear waste grant funds, gao/rced9672 washington, d.c.:',
9586:'mar. 20, 1996. 146 “[n]one of the funds herein appropriated may be used directly or indirectly to influence legislative action',
9587:'on any matter pending before congress or a state legislature or for any lobbying activity as provided in section 1913',
9588:'of title 18, united states code.” energy and water development appropriations act, 1995, pub. l. no. 103316, 108 stat. 1707,',
9589:'1716 aug. 26, 1994. page 4226 gao04261sp appropriations law—vol. i e. informational activities chapter 4 availability of appropriations: purpose gao',
9590:'concluded that the production of a videotape advancing the state’s opposition to a nuclear waste repository at yucca mountain was',
9591:'an indirect attempt to influence a matter pending before congress. in our preceding discussion of lobbying by government agencies, we',
9592:'noted that appropriation act restrictions may be limited to lobbying the united states congress or may also apply to lobbying',
9593:'at the state and local level where expressly provided. the same principle applies with respect to lobbying with grant funds.',
9594:'b214455, oct. 24, 1984; b206466, sept. 13, 1982. as we have noted previously, a government agency has a legitimate interest',
9595:'in informing the public about its programs and activities. just how far it can go depends on the nature of',
9596:'its statutory authority. certainly there is no need for statutory authority for an agency to issue a press release describing',
9597:'a recent speech by the agency head, or for the agency head or some other official to participate in a',
9598:'radio, television, or magazine interview. activities of this type are limited only by applicable restrictions on the use of public',
9599:'funds such as the antilobbying statutes previously discussed. a 1983 decision illustrates another form of information dissemination that is permissible',
9600:'without the need for specific statutory support. military chaplains are required to hold religious services for the commands to which',
9601:'they are assigned. 10 u.s.c. § 3547. publicizing such information as the schedule of services and the names and telephone',
9602:'numbers of installation chaplains is an appropriate extension of this duty. thus, gao advised the army that it could procure',
9603:'and distribute calendars on which this information was printed. 62 comp. gen. 566 1983. applying a similar rationale, the decision',
9604:'also held that information on the community services program, which provides various social services for military personnel and their families,',
9605:'could be included. see also b290900, mar. 18, 2003 approving the bureau of land management’s use of appropriated funds to',
9606:'pay its share of the costs of disseminating information under a cooperative agreement; b280440, feb. 26, 1999 allowing the border',
9607:'patrol’s use of appropriated funds to purchase uniform medals that, in part, served to advance “knowledge and appreciation for the',
9608:'agency’s history and mission”. some agencies have specific authority to disseminate information. such authority will permit a broader range of',
9609:'activities and gives the agency page 4227 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose discretion to choose',
9610:'the appropriate means, the selection being governed by the necessary expense doctrine. the agency may use common devices such as',
9611:'buttons or magnets e.g., 72 comp. gen. 73 1992, newsletters e.g., b128938, july 12, 1976 or conferences or seminars e.g.,',
9612:'b166506, july 15, 1975. in one case, the comptroller general approved a much less conventional means. shortly after world war',
9613:'ii, the labor department wanted to publicize its employment services for veterans. it did this by discharging balloons from a',
9614:'float in a parade. attached to the balloons were mimeographed messages asking employers to list their available jobs. since the',
9615:'department was charged by statute with publishing information on the program, the cost of the balloons was permissible. b62501, jan.',
9616:'7, 1947. other pertinent cases are 32 comp. gen. 487 1953 publication of public health service research reports in scientific',
9617:'journals; 32 comp. gen. 360 1953 the recording of office of price stabilization forum discussions to be used at similar',
9618:'meetings in other regions; b89294, aug. 6, 1963 use of motion picture by united states information agency; b15278, may 15,',
9619:'1942 photographs; a82749, jan. 7, 1937 radio broadcasts. conversely, in 18 comp. gen. 978 1939, radio broadcasts by the veterans',
9620:'administration were held to violate 31 u.s.c. § 1301a because the agency did not have statutory authority to disseminate information',
9621:'about its activities. however, in 1958, congress gave the thennamed veterans administration the authority to “provide for the preparation, shipment,',
9622:'installation, and display of exhibits, photographic displays, moving pictures, and other visual educational information and descriptive material.”147 the comptroller general',
9623:'found that this authority, now codified in 38 u.s.c. § 703d, permitted the department of veterans affairs to use its',
9624:'medical care appropriation for the rental of booth space at the oklahoma state fair and for the purchase of imprinted',
9625:'book matches and imprinted jar grip openers to be distributed at the fair for recruiting purposes and to provide veterans',
9626:'with a number to call to obtain information. b247563.2, may 12, 1993. the bureau of printing and engraving also needed',
9627:'statutory authority to publish a 100year history to commemorate its centennial because the bureau is essentially an “industrial and service”',
9628:'establishment and lacked authority to disseminate information. 43 comp. gen. 564 1964. 147 pub. l. no. 85857, § 233, 72',
9629:'stat. 1105, 1116 sept. 2, 1958. page 4228 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose f. advertising',
9630:'and the employment of publicity experts 1 commercial advertising suppose you opened this publication and found on the inside front',
9631:'cover a fullpage advertisement for somebody’s soap or underwear or aluminum siding or the local pool parlor. we assume most',
9632:'readers would find this offensive. there is in fact a longstanding policy against involving the government in commercial advertising. in',
9633:'the case of government publications, the policy is codified in section 13 of the government printing and binding regulations issued',
9634:'by the joint committee on printing 1990 reprint: “no government publication or other government printed matter, prepared or produced with',
9635:'either appropriated or nonappropriated funds or identified with an activity of the government, shall contain any advertisement inserted by or',
9636:'for any private individual, firm, or corporation; or contain material which implies in any manner that the government endorses or',
9637:'favors any specific commercial product, commodity, or service.” s.pub. no. 1019 at 13 1990. an explanatory paragraph included in the',
9638:'regulations summarizes many of the reasons for this prohibition. advertising would be unfair to competitors in that it would, regardless',
9639:'of intent, unavoidably create the impression of government endorsement. it would also be unfair to nongovernment publications that compete for',
9640:'advertising dollars and need those dollars to stay in business. acceptance of advertising could also pose ethical, if not legal,',
9641:'problems. imagine, for example, lobbyists scrambling to purchase advertising space in the congressional record. a different situation was presented in',
9642:'67 comp. gen. 90 1987. the united states information agency usia was authorized to accept donations of radio programs from',
9643:'private syndicators for broadcast over the voice of america. some donations were conditioned on the inclusion of commercial advertising. gao',
9644:'noted that, in the case of public broadcast stations which are supported by the corporation for public broadcasting, commercial advertising',
9645:'is expressly prohibited by 47 u.s.c. § 399bb. however, there was no comparable statute applicable to usia. therefore, the conditional',
9646:'donations were not subject to any legal prohibition. in view of the traditional policy against commercial advertising, gao suggested that',
9647:'usia first consult the appropriate congressional committees. page 4229 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose 2',
9648:'advertising of government programs, products, or services even the casual viewer of commercial television will note that the government is',
9649:'heavily “into” advertising. from the everpresent “smokey bear” reminding us that only we can prevent wildfires148 to vince and larry,',
9650:'the crash test dummies, and the recruitment efforts of the u.s. army and its message “an army of one,” the',
9651:'government has sponsored a variety of campaigns designed to either encourage or discourage various behaviors. whether an agency’s appropriations are',
9652:'available for advertising, like any other expenditure, depends on the agency’s statutory authority. whether to advertise and, if so, how',
9653:'far to go with it149 are determined by the precise terms of the agency’s program authority in conjunction with the',
9654:'necessary expense doctrine and general restrictions on the use of public funds such as the various antilobbying statutes. see b251887,',
9655:'july 22, 1993 forest service may pay for newspaper advertisements informing the public of activities in the national forests because',
9656:'these activities are within the service’s statutory authority and the advertisements are reasonable ways of disseminating information related to the',
9657:'purposes of the service’s appropriation; b229732, dec. 22, 1988 department of housing and urban development had no authority to incur',
9658:'promotional expenses at a trade show in the soviet union when the purpose of the show was to enhance the',
9659:'potential for sale of american products and services in the soviet union, a purpose unrelated to hud’s mission. as noted',
9660:'previously, some agencies have express promotional authority. for example, the department of energy may promote energy conservation. see b139965, apr.',
9661:'16, 1979 nondecision letter. similarly, the united states postal service has statutory authority to advertise its philatelic 148 smokey bear',
9662:'and his famous warning, “only you can prevent forest fires” was introduced to americans in 1944. in response to an',
9663:'outbreak of wildfires in 2000, the campaign was changed to “only you can prevent wildfires.” whatever his slogan, smokey is',
9664:'recognized and protected by act of congress. see 16 u.s.c. § 580p. mess with smokey and you can go to',
9665:'jail. 18 u.s.c. § 711. 149 even with specific authority to advertise, agencies still need to be careful. see federal',
9666:'express corp. v. united states postal service, 151 f.3d 536 6th cir. 1998 and federal express corp. v. united states',
9667:'postal service, 40 f. supp. 2d 943 w.d. tenn. 1999 involving claims that the u.s. postal service engaged in false',
9668:'advertising. page 4230 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose services to encourage stamp collecting. b114874.30, mar.',
9669:'3, 1976 nondecision letter. as with the dissemination of information, where promotional authority exists, agencies have reasonable discretion, subject to',
9670:'“necessary expense” considerations, in selecting appropriate means. thus, the navy could exercise its statutory authorization to promote safety and accident',
9671:'prevention by procuring book matches with safety slogans printed on the covers and distributing them without charge at naval installations.',
9672:'b104443, aug. 31, 1951. another example is b184648, dec. 3, 1975. activities of the united states mint furnish additional illustrations.',
9673:'in b206273, sept. 2, 1983, gao considered the mint’s promotional authority under legislation authorizing coins to commemorate the 1984 los',
9674:'angeles summer olympics. gao concluded that the mint could stage media events and receptions, and could give away occasional sample',
9675:'coins at these events, if 1 the expenditures were deemed necessary to further the statutory objectives, 2 a reasonable relationship',
9676:'were found to exist between a given expenditure and a marketing benefit for the program, and 3 promotional expenses were',
9677:'recouped from sales proceeds. in 68 comp. gen. 583 1989, gao applied the same standards to the commemorative coin program',
9678:'generally.150 subsequent mint legislation expressly authorizes marketing, promotion, and advertising. see, e.g., 31 u.s.c. § 5136. the line between promotion',
9679:'and information dissemination is occasionally thin, but the concepts are nevertheless different. thus, an agency may be authorized to disseminate',
9680:'information but not to promote. if so, its “advertising” must be tailored accordingly. for example, the federal housing administration could',
9681:'disseminate authentic information on available benefits or related procedures under a loan insurance program, but could not use its funds',
9682:'for an advertising campaign to create demand. 14 comp. gen. 638 1935. similarly, when the united states metric board was',
9683:'first created, it could provide information, assistance, and coordination for voluntary conversion to metrics but could not advocate metric conversion.',
9684:'see u.s. general accounting office, getting a better understanding of the metric system—implications if adopted by the 150 this case',
9685:'also held that the scope of legitimate promotional activities could not include the printing of business cards for sales representatives.',
9686:'business cards are now approved expenditures where they are a necessary expense of agency operations. b280759, nov. 5, 1998. there',
9687:'is a lengthy discussion of business cards in this chapter, section c.13.b. page 4231 gao04261sp appropriations law—vol. i chapter 4',
9688:'availability of appropriations: purpose united states, ced78128 washington, d.c.: oct. 20, 1978; b140339, june 19, 1979. 3 publicity experts a',
9689:'statute originally enacted in 1913, now found at 5 u.s.c. § 3107, provides: “appropriated funds may not be used to',
9690:'pay a publicity expert unless specifically appropriated for that purpose.” gao has had little occasion to interpret or apply 5',
9691:'u.s.c. § 3107 and, from the earliest cases, has consistently noted certain difficulties in enforcing the statute. in gao’s first',
9692:'substantive discussion of 5 u.s.c. § 3107, the comptroller general stated “[i]n its present form, the statute is ineffective.” a61553,',
9693:'may 10, 1935. the early cases151 identified three problem areas, summarized in b1812542, feb. 28, 1975. first, the prohibition is',
9694:'against compensating any “publicity expert,” but the statute does not define the term “publicity expert” nor does it provide criteria',
9695:'for determining who is one. traditionally, persons employed for or engaged in socalled publicity work have not been appointed as',
9696:'“publicity experts” but under some other designation, and often have other duties as well. everyone who prepares a press release',
9697:'is not a “publicity expert.” testifying before the house select committee on lobbying activities in 1950, assistant comptroller general weitzel',
9698:'said: “i might mention one of the great difficulties in enforcing that language is it is very, very rare, if',
9699:'ever, the case that a man is on the pay roll as publicity experts [sic]. he can be called almost',
9700:'anything else, and usually and frequently will have other duties, so that that in itself, is a very difficult statute',
9701:'to enforce.”152 151 there is no mention of the 1913 statute before the 1930s. a small group of cases then',
9702:'arose. in addition to a61553, cited in the text, see b26689, may 4, 1943; a93988, apr. 19, 1938; a82332, dec.',
9703:'15, 1936; a57297, sept. 11, 1934. another stretch of silence followed and the statute did not arise again until b1812542,',
9704:'feb. 28, 1975. 152 the role of lobbying in representative selfgovernment, hearings before the house select committee on lobbying activities,',
9705:'81st cong., pt. 1, at 156 1950. page 4232 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose second,',
9706:'employees engaged in socalled publicity work are normally assigned to their duties by their supervisors. it would be harsh, in',
9707:'the absence of much more definitive legislative or judicial guidance, to withhold the compensation of an employee who is merely',
9708:'doing his or her assigned job. some thought was given in the 1930s and early 1940s to amending the statute',
9709:'to cure this problem, but the legislation was not enacted. see b1812542, supra; b26689, may 4, 1943; a82332, dec. 15,',
9710:'1936. third, the effective implementation of the duties of some agencies requires the acquisition and dissemination of information, although agencies',
9711:'normally do not receive specific appropriations for the required personnel. based on these considerations, gao does not view 5 u.s.c.',
9712:'§ 3107 as prohibiting an agency’s legitimate informational functions or legitimate promotional functions where authorized by law. the apparent intent',
9713:'of the statute is to prohibit publicity activity “for the purpose of reflecting credit upon an activity, or upon the',
9714:'officials charged with its administration, rather than for the purpose of furthering the work which the law has imposed upon',
9715:'it.” a82332, dec. 15, 1936. see also b1812542, supra. in this sense, 5 u.s.c. § 3107 is closely related to',
9716:'the prohibition on self aggrandizement previously discussed, although the focus is different in that, to violate 5 u.s.c. § 3107,',
9717:'the activity must be performed by a “publicity expert.” in the only two cases in the 1970s with any substantial',
9718:'discussion of 5 u.s.c. § 3107, gao considered a mass media campaign by the federal energy administration fea, now part',
9719:'of the department of energy, to educate the american public on the need for and means of energy conservation. based',
9720:'on the considerations discussed above and on the fea’s statutory authority to disseminate information and to promote energy conservation, gao',
9721:'found no basis on which to assess a violation of 5 u.s.c. § 3107. b1812542, supra; b139965, apr. 16, 1979',
9722:'nondecision letter. in both cases gao stressed its view that the statute is not intended to interfere with the dissemination',
9723:'of information that an agency is required or authorized by statute to disseminate, or with promotional activities authorized by law.',
9724:'the only case in the 1980s to apply 5 u.s.c. § 3107 is b222758, june 25, 1986. the chemical warfare',
9725:'review commission, a presidential advisory committee, hired a public affairs consultant. the commission’s functions were solely advisory; it had no',
9726:'authority to engage in promotional activities page 4233 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose or to',
9727:'maintain a public affairs program. in view of the consultant’s duties, job title, and reputation, gao found that he was',
9728:'a “publicity expert.” as such, and given the nature of the commission’s functions and its lack of statutory authority, the',
9729:'hiring was held to violate 5 u.s.c. § 3107. 12. membership fees a. 5 u.s.c. § 5946 appropriated funds may',
9730:'not be used to pay membership fees of an employee of the united states or the district of columbia in',
9731:'a society or association. 5 u.s.c. § 5946. the prohibition does not apply if an appropriation is expressly available for',
9732:'that purpose, or if the fee is authorized under the government employees training act. under the training act, membership fees',
9733:'may be paid if the fee is a necessary cost directly related to the training or a condition precedent to',
9734:'undergoing the training. 5 u.s.c. § 4109b. the rule that has evolved under 5 u.s.c. § 5946 is that membership',
9735:'fees for individuals may not be paid, regardless of the resulting benefit to the agency. an agency may, however, purchase',
9736:'a membership in its own name upon an administrative determination that the expenditure would further the authorized activities of the',
9737:'agency, and this determination is not affected by any incidental benefits that may accrue to individual employees.153 in 24 comp.',
9738:'gen. 814 1945, the veterans administration va asked whether it could pay membership fees for va facilities in the american',
9739:'hospital association. facility membership would enable individual employees to apply for personal membership at reduced rates. the comptroller general responded',
9740:'that the facility memberships were permissible if administratively determined necessary to accomplish the objectives of the appropriation to be charged.',
9741:'the indirect benefit to individual officials would not operate to invalidate the agency membership. however, the expenditure would be improper',
9742:'if its purpose was merely to 153 a few very early decisions will be found to the effect that 5',
9743:'u.s.c. § 5946 prohibits agency memberships as well as individual memberships. e.g., 19 comp. gen. 838 1940; 24 comp. dec.',
9744:'473 1918. while these decisions do not appear to have been explicitly overruled or modified, they must be regarded as',
9745:'implicitly repudiated by the subsequent body of case law to the extent they purport to prohibit adequately justified agency memberships.',
9746:'page 4234 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose enable the officials to obtain the reduced rates',
9747:'for personal memberships. va could not, of course, pay for the individual memberships. similarly, gao advised the environmental protection agency',
9748:'epa that it could not pay the membership fees for its employees in professional organizations such as the national environment',
9749:'research center and the national solid waste management association, notwithstanding the allegation that the benefits of membership would accrue more',
9750:'to the agency than to the individuals. epa could, however, purchase a membership in its own name if it justified',
9751:'the expenditure as being of direct benefit to the agency and sufficiently related to carrying out the purposes of its',
9752:'appropriation. 53 comp. gen. 429 1973.154 in another 1973 decision, the comptroller general held that the justice department could not',
9753:'reimburse an electronics engineer employed by the bureau of narcotics and dangerous drugs for membership in the institute of electrical',
9754:'and electronic engineers. the justice department had argued that the government benefited from the membership by virtue of reduced subscription',
9755:'rates to institute publications and because the membership contributed to employee development. these factors were not sufficient to overcome the',
9756:'prohibition of 5 u.s.c. § 5946. once again, gao pointed out that the bureau could become a member of the',
9757:'institute in its own name if membership was administratively determined to be necessary. 52 comp. gen. 495 1973. to the',
9758:'same effect is b205768, mar. 2, 1982 federal mediation and conciliation service can purchase agency membership in association of labor',
9759:'related agencies upon making appropriate administrative determinations. in another case, the comptroller general held that the national oceanic and atmospheric',
9760:'administration could not pay the membership fee of one of its employees in federally employed women, inc., notwithstanding the employee’s',
9761:'designation as the agency’s regional representative. the mere fact that membership may be jobrelated does not overcome the statutory prohibition.',
9762:'b198720, june 23, 1980. see also 19 comp. dec. 650 1913 army could not pay for adjutant general’s membership in',
9763:'international association of chiefs of police. similarly, the fact that membership may result in savings to the government, such as',
9764:'reduced travel rates for 154 the last sentence of the decision uses the term “essential.” this word is too strong.',
9765:'the necessary expense doctrine does not require that an expenditure be essential. page 4235 gao04261sp appropriations law—vol. i chapter 4',
9766:'availability of appropriations: purpose members, does not overcome the prohibition against individual memberships. 3 comp. gen. 963 1924. as noted,',
9767:'an agency may purchase membership in its own name in a society or association since 5 u.s.c. § 5946 prohibits',
9768:'only memberships for individual employees. the distinction, however, is not a distinction in name only. an expenditure for an agency',
9769:'membership must be justified on a “necessary expense” theory. to do this, the membership must provide benefits to the agency',
9770:'itself. for example, in 31 comp. gen. 398 1952, the economic stabilization agency was permitted to become a member of',
9771:'a credit association because members could purchase credit reports at reduced cost and the procurement of credit reports was determined',
9772:'to be necessary to the enforcement of the defense production act. in 33 comp. gen. 126 1953, the office of',
9773:'technical services, commerce department, was permitted to purchase membership in the american management association. the appropriation involved was an appropriation',
9774:'under the mutual security act to conduct programs including technical assistance to europe, and the membership benefit to the agency',
9775:'was the procurement of association publications for foreign trainees and foreign productivity centers. see also 70 comp. gen. 190 1991',
9776:'prohibition in 5 u.s.c. § 5946 does not prohibit an agency from using appropriated funds to purchase access for its',
9777:'employees to a private fitness center’s exercise facilities as part of the agency’s health service program as authorized by 5',
9778:'u.s.c. § 7901; b241706, june 19, 1991 public health service may reimburse physicians for annual medical staff dues since hospital',
9779:'privileges are essential to the performance of the agency’s business; b236763, jan. 10, 1990 gao may pay fees for agency',
9780:'membership in certain professional organizations and designate appropriate gao employees to attend functions for recruitment purposes. citing 31 comp. gen.',
9781:'398 and 33 comp. gen. 126, the comptroller general held in 57 comp. gen. 526 1978, that the department of',
9782:'housing and urban development could purchase, in the name of the department, air travel club memberships to obtain discount air',
9783:'fares to hawaii. similarly, the general services administration could join a shippers association to obtain the benefit of volume transportation',
9784:'rates. b159783, may 4, 1972. gao has also approved membership by the federal law enforcement center in the local chamber',
9785:'of commerce, b213535, july 26, 1984, and by a naval installation in the local rotary club, 61 comp. gen. 542',
9786:'1982. in the latter decision, however, gao cautioned that the result was based on the specific justification presented, and that',
9787:'the decision should not be page 4236 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose taken to mean',
9788:'that “every military installation or regional government office can use appropriated funds to join the rotary, kiwanis, lions, and similar',
9789:'organizations.” id. at 544. the acquisition of needed publications for the agency is sufficient benefit to justify purchase of an',
9790:'agency membership. 20 comp. gen. 497 1941 membership of naval academy in american council on education; a30185, feb. 5, 1930',
9791:'membership of phoenix indian school in national education association. see also 33 comp. gen. 126 1953. compare 52 comp. gen.',
9792:'495 1973, holding that acquisition of publications is not sufficient to justify an individual, as opposed to agency, membership. a',
9793:'variation occurred in 19 comp. gen. 937 1940. the cleveland office of the securities and exchange commission sec desired access',
9794:'to a law library maintained by the cleveland law library association. access was available only to persons who were stockholders',
9795:'in the association. the alternative to the sec would have been the purchase of its own library at a much',
9796:'greater cost. under the circumstances, gao advised that 5 u.s.c. § 5946 did not prohibit the stock purchases or the',
9797:'payment of stockholders assessments. gao further noted, however, that a preferable alternative would be a contract with the association for',
9798:'a flatrate service charge. where there is no demonstrable benefit to the agency, the membership expense is improper. thus, in',
9799:'32 comp. gen. 15 1952, the cost of membership fees for the new york ordnance district of the army in',
9800:'the society for advancement of management was disallowed. the membership was in actuality four separate memberships for four individuals and',
9801:'the primary purpose was to enhance the knowledge of those individuals. since the benefit to the agency must be in',
9802:'terms of furthering the purposes for which its appropriation was made, a benefit to the united states as a whole',
9803:'rather than the individual agency may not be sufficient. in 5 comp. gen. 645 1926, the former veterans bureau owned',
9804:'herds of livestock and wanted to have them registered. reduced registration costs could be obtained by joining certain livestock associations.',
9805:'the benefit of registration would be a higher price if the agency sold the livestock. however, sales proceeds would have',
9806:'to be deposited in the treasury as miscellaneous receipts and would thus not benefit the agency’s appropriations. membership was therefore',
9807:'improper. the agency’s appropriation language was subsequently changed and the membership was approved in a38236, mar. 30, 1932. page 4237',
9808:'gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose several of the decisions have pointed out that an agency',
9809:'may accept a gratuitous membership without violating the antideficiency act. 31 comp. gen. 398, 399 1952; a38236, mar. 30, 1932,',
9810:'quoted in 24 comp. gen. 814, 815 1945. in addition, payment of a membership fee at the beginning of the',
9811:'period of membership does not violate the prohibition on advance payments found in 31 u.s.c. § 3324. for example, in',
9812:'b221569, june 2, 1986, the coast guard could properly use its funds to pay the membership fees in certain unspecified',
9813:'private organizations not physical fitness facilities at the beginning of the membership period. the advance payment prohibition was not applicable',
9814:'since the agency got the benefit of what it purchased upon payment. what was being purchased was a “membership,” and',
9815:'the membership was received upon payment. compare b288013, dec. 11, 2001, holding that agency payments of membership fees to a',
9816:'private fitness center at the beginning of each option year, under a contract for providing fitness facilities and services for',
9817:'government employees, before it is known how many and when agency employees use the contractor’s facilities and services, would violate',
9818:'the advance payment provision in 31 u.s.c. § 3324. there is a fuller discussion of the advance payment provision in',
9819:'chapter 5, section c. the evolution of the statutory law on membership fees produced a somewhat anomalous result in some',
9820:'of the early cases. section 5946 of title 5 of the united states code originally prohibited—and still prohibits— not only',
9821:'membership fees but also the expenses of attending meetings. in the early decades of the statute, some agencies received specific',
9822:'authority to pay the expenses of attendance at meetings, but many did not. thus, as the individual versus agency membership',
9823:'distinction developed, some of the decisions were forced to conclude that an agency could purchase a membership in an association',
9824:'but that nobody could attend the meetings since attending meetings could not be done by “the agency” but only through',
9825:'an individual. see, e.g., 24 comp. gen. 814, 815 1945; a30185, feb. 5, 1930. two provisions of the government employees',
9826:'training act, 5 u.s.c. §§ 4109 and 4110, now permit attendance at meetings and conferences in certain situations. thus, as',
9827:'a general proposition, if an organization is closely enough related to an agency’s official functions to justify agency membership, it',
9828:'is presumably closely enough related to justify sending a representative to its meetings. see also section c.2 of this chapter,',
9829:'entitled “attendance at meetings and conventions.” page 4238 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose as noted',
9830:'above, the prohibition in 5 u.s.c. § 5946 against individual memberships does not apply if the fee is authorized by',
9831:'the government employees training act. an illustration is 61 comp. gen. 162 1981, holding that the defense department could pay',
9832:'the licensing fees of methods time measurement instructors for the army management engineering training agency. the instructors had to be',
9833:'trained and certified—hence the fee—before they could train others. further, the fee was not a matter of “personal qualification” since',
9834:'the certifications would be restricted to the training of defense department personnel and would be of no personal use to',
9835:'the instructors apart from their defense department jobs. for more on the issue of personal qualification see section c.13.e of',
9836:'this chapter. compare that case with the decision in b286026, june 12, 2001, in which the pension benefit guaranty corporation',
9837:'pbgc asked whether it could use appropriated funds to pay, as training costs, fees for actuary accreditation. pbgc employs a',
9838:'number of actuaries to calculate pension benefits. although actuaries do not need a professional license for employment, as part of',
9839:'a collective bargaining agreement pbgc proposed to use training funds to send actuaries to the examination review courses, provide onthejob',
9840:'study time, and pay for the accreditation examinations. pbgc determined that this course of study and testing would enhance the',
9841:'ability of the pbgc actuaries to carry out their assignments. pbgc has the discretion under the government employees training act',
9842:'to determine that the review courses constitute appropriate training for its actuaries. accordingly, gao agreed that pbgc has authority, under',
9843:'5 u.s.c. § 4109a, to use appropriated funds for review courses and onthejob study time. however, there was no authority',
9844:'to pay the cost of the accreditation examination itself, since a licensing accreditation examination does not fall within the government',
9845:'employees training act’s definition of training. in the absence of statutory authority, an agency may not pay the costs of',
9846:'its employees taking licensing examinations since professional accreditation is personal to the employee and should be paid with personal funds.',
9847:'here, the actuarial accreditation belongs to the employee personally and would remain so irrespective of whether the employee remains with',
9848:'the federal government. this case predated enactment of 5 u.s.c. § 5757, which gave agencies the discretionary authority to reimburse',
9849:'employees for expenses incurred in obtaining professional credentials, including the costs of examinations. this authority is discussed in more detail',
9850:'in this chapter in the next section on attorneys’ expenses related to admission to the bar, and in section c.13.e',
9851:'of this chapter on professional qualification expenses. page 4239 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose another',
9852:'example of the inapplicability of 5 u.s.c. § 5946 when the membership fee is authorized under the government employees training',
9853:'act is b223447, oct. 10, 1986, approving certain individual memberships for employees of the u.s. army corps of engineers in',
9854:'the toastmasters international organization as a source of public speaking training. the organization required membership in order to obtain the',
9855:'training. because the government employees training act does not apply to active duty members of the uniformed services 68 comp.',
9856:'gen. 127 1988, the act’s exception to 5 u.s.c. § 5946, and cases applying the act or the exception, apply',
9857:'to civilian employees of the military departments but not to uniformed personnel. b. attorneys over the years a number of',
9858:'cases have dealt with the expenses of admission to the bar and related items for attorneys employed by the government.',
9859:'generally these expenses have been viewed as personal qualification expenses to be paid by the attorney. recent legislation codified at',
9860:'5 u.s.c. § 5757 provides authority for agencies, at their discretion, to pay some or all of these expenses. see',
9861:'the discussion at the end of this section. the question first came up in 22 comp. gen. 460 1942, when',
9862:'the federal trade commission asked if it could reimburse one of its attorneys the fee he paid to be admitted',
9863:'to the bar of the tenth circuit court of appeals. the attorney had paid the fee in order to make',
9864:'an appearance to represent the agency in a suit filed against it. the comptroller general said no, stating the rule',
9865:'as follows: “it has been the consistent holding of the accounting officers of the united states that an officer or',
9866:'employee of the government has upon his own shoulders the duty of qualifying himself for the performance of his official',
9867:'duties and that if a personal license is necessary to render him competent therefor, he must procure it at his',
9868:'own expense.” id. at 461. in 1967, the national labor relations board asked gao to reconsider the rule in a',
9869:'fact situation similar to that in 22 comp. gen. 460. gao reviewed the basis for the prior decision in light',
9870:'of the government employees training act, but found no reason to change it. pointing out that “the privilege to practice',
9871:'before a particular court is personal to the individual and is his for life unless disbarred regardless of whether he',
9872:'remains in the government service,” the comptroller general again held that the bar page 4240 gao04261sp appropriations law—vol. i chapter',
9873:'4 availability of appropriations: purpose admission fee was personal to the attorney and could not be paid from appropriated funds.',
9874:'47 comp. gen. 116 1967. the same result was reached in b161952, june 12, 1978, again to the national labor',
9875:'relations board. the fact that an attorney might require admission to several courts rather than just one in the performance',
9876:'of official duties was found immaterial and gao rejected the suggestion that the court admission would be of very limited',
9877:'value to the attorney after leaving the government. questions have also arisen over the requirement for a government attorney to',
9878:'remain a member in good standing of the bar of some state or the district of columbia. in a jurisdiction',
9879:'with a “unified” or “integrated” bar, the attorney must pay an annual fee to remain a member in good standing,',
9880:'and membership in the state’s bar association goes along with the fee. some states require annual fees to remain on',
9881:'the active rolls but do not include bar association membership. in b171667, mar. 2, 1971, the annual fee for an',
9882:'internal revenue service attorney to remain in good standing in the california bar, an integrated bar jurisdiction, was held not',
9883:'reimbursable from appropriated funds. the fee remains a matter of personal qualification and the principle is the same whether applied',
9884:'to a onetime fee or to dues or fees charged on a recurring basis. the decision cited 5 u.s.c. §',
9885:'5946 as an additional reason. gao reached the same result in 51 comp. gen. 701 1972, concerning a patent office',
9886:'attorney’s membership in the unified bar of the district of columbia; again in b204213, sept. 9, 1981, concerning mandatory dues',
9887:'for continued membership in the north carolina bar; and still again in b204215, dec. 28, 1981, concerning the membership of',
9888:'an internal revenue service estate tax attorney in the new jersey bar. another case applying the prohibition is b187525, oct.',
9889:'15, 1976. the decision further pointed out that an agency may not pay the costs incurred by one of its',
9890:'attorneys in taking a bar examination since the examination is part of the employee’s personal qualification process. see also 55',
9891:'comp. gen. 759 1976 concerning examinations in general. in 61 comp. gen. 357 1982, gao held that the merit systems',
9892:'protection board could not pay the bar membership fees of its appeals officers. it made no difference that the requirement',
9893:'for appeals officers to be bar admitted attorneys was a new one the board had imposed on incumbent employees. in',
9894:'addition, the board could not pay bar review course fees. the decision distinguished b187525, cited above, which had permitted bar',
9895:'review course fees in a very limited situation. page 4241 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose',
9896:'in 2001, section 1112 of the national defense authorization act for fiscal year 2002, pub. l. no. 107107, 115 stat.',
9897:'1238 dec. 28, 2001 amended title 5, united states code, by adding a new section 5757. under 5 u.s.c. §',
9898:'5757a, agencies may, at their discretion, use appropriated funds to pay expenses incurred by employees to obtain professional credentials, state',
9899:'imposed and professional licenses, professional accreditations, and professional certifications, including the costs of examinations to obtain such credentials. this authority',
9900:'is not available to pay such fees for employees in or seeking to be hired into positions excepted from the',
9901:'competitive service because of the confidential, policydetermining, policymaking, or policyadvocating character of the position. 5 u.s.c. § 5757b. nothing in',
9902:'the statute or its legislative history defines or limits the terms “professional credentials,” “professional accreditation,” or “professional certification.” agencies have',
9903:'the discretion to determine whether resources permit payment of credentials, and what types of professional expenses will be paid under',
9904:'the statute. thus, if an agency determines that the fees its attorneys must pay for admission to practice before federal',
9905:'courts are in the nature of professional credentials or certifications, the agency may exercise its discretion under 5 u.s.c. §',
9906:'5757 and pay those fees out of appropriated funds. b289219, oct. 29, 2002. 13. personal expenses and furnishings a. introduction',
9907:'items that are classified as personal expenses or personal furnishings may not be purchased with appropriated funds without specific statutory',
9908:'authority. most of the cases tend to involve government employees, the theory being simply that there are certain things an',
9909:'employee is expected to provide for himherself. a prime example is food, covered in detail previously in this chapter. the',
9910:'rule on personal expenses and furnishings was stated as follows in 3 comp. gen. 433 1924: “[p]ersonal furnishings are not',
9911:'authorized to be purchased under appropriations in the absence of specific provision therefor contained in such appropriations or other acts,',
9912:'if such furnishings are for the personal convenience, comfort, or protection of such employees, or are such as to be',
9913:'reasonably required as a part of the usual and necessary page 4242 gao04261sp appropriations law—vol. i chapter 4 availability of',
9914:'appropriations: purpose equipment for the work on which they are engaged or for which they are employed.” this decision is',
9915:'still cited frequently and the rule is applied in many contexts. of course, over the years, exceptions have evolved, both',
9916:'statutory and nonstatutory. the remainder of this section explores several categories of personal expenses. b. business or calling cards business',
9917:'cards or calling cards are commonly used in the commercial world. we use the terms synonymously here even though there',
9918:'may be technical distinctions. until 1998, we considered them inherently personal in nature, and therefore, a personal expense that was',
9919:'not payable from appropriated funds, absent specific statutory authority. see b246616, july 17, 1992. in 1998, however, we agreed that',
9920:'an agency, applying a necessary expense analysis, may reasonably determine that its appropriations are available to obtain business cards for',
9921:'employees who regularly deal with the public or organizations outside their immediate office. b280759, nov. 5, 1998. the previous rule',
9922:'had its origins in decisions of the comptroller of the treasury. for example, in 20 comp. dec. 248 1913, the',
9923:'comptroller of the treasury considered the argument that was usually presented in every case—that the cards were to be used',
9924:'for official business purposes. nonetheless, business or calling cards were considered more a matter of personal convenience than necessity. therefore,',
9925:'the comptroller advised federal agencies that the cost of business cards is a personal expense and, therefore, is not chargeable',
9926:'to public funds.155 in more recent years, the comptroller general applied the longstanding prohibition of the use of appropriated funds',
9927:'for: reimbursement of an employee of the national highway traffic safety administration who had purchased business cards at his own',
9928:'expense b195036, july 11, 1979; purchase of a forest service public affairs officer’s “identification cards,” since the cards were to',
9929:'be used for the same purposes as traditional business cards 68 comp. gen. 467 1989; and payment for “cards of',
9930:'introduction” b149151, july 20, 1962. 155 “[i]n official life it has been the practice for the official himself to furnish',
9931:'his own cards, the salaries in most instances being adequate for such expenditures,” the comptroller of the treasury chided. 20',
9932:'comp. dec. at 250. page 4243 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose in 1998, gao reexamined',
9933:'the prohibition. in b280759, nov. 5, 1998, gao did not object to the use of operation and maintenance o&m funds',
9934:'for the purchase of business cards for use by civilian personnel specialists of the army civilian personnel advisory center. the',
9935:'advisory center acts as a liaison between army employing units and their employees, and provides advice and assistance to employers',
9936:'and employees. the specialists would use the business cards to provide the center’s customers with accurate information on how to',
9937:'contact the specialist assigned to a customer’s case. applying a necessary expense analysis, we concluded that business cards would advance',
9938:'the center’s mission, and that use of the army’s o&m appropriation which funds the center’s activities to purchase business cards',
9939:'for the specialists was proper. see also memorandum from richard l. shiffrin, deputy assistant attorney general, office of legal counsel,',
9940:'department of justice, to emily c. hewitt, general counsel, general services administration, aug. 11, 1997. we have considered the cost',
9941:'of business or calling cards for members of congress and their staff who require them a necessary and justifiable expense,',
9942:'given the nature of members’ constituent responsibilities. see b198419, nov. 25, 1980; b198419, july 8, 1980. also, we have considered',
9943:'reception and representation or comparable forms of “entertainment” appropriations to be available to purchase business cards for employees whose jobs',
9944:'included representation. b223678, june 5, 1989 noting that business cards are a “legitimate and accepted” representation device, so the expenditure',
9945:'is subject to the limitation of that appropriation. see also 72 comp. gen. 146 1993; 68 comp. gen. 467, 468',
9946:'n.1 1989; b246616, july 17, 1992. we considered a variation on business cards in b173239, june 15, 1978. the board',
9947:'for international broadcasting wanted to use what it termed “transmittal slips” to accompany the distribution of its annual report. the',
9948:'transmittal slip resembled a business card and contained the words “with the compliments of name and title, board for international',
9949:'broadcasting.” it was not necessary to decide whether the “slips” were business cards or not, because 44 u.s.c. § 1106',
9950:'expressly provides that documents distributed by an executive department or independent establishment may not contain or include a notice that',
9951:'they are being sent with “the compliments” of a government official. use of the transmittal slips was therefore unauthorized. page',
9952:'4244 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose c. health, medical care and treatment also, “name tags”',
9953:'to be worn on the person were not considered the same as business cards and could be provided from appropriated',
9954:'funds. b236763, jan. 10, 1990. a name tag is more closely analogous to a government identification card, which is clearly',
9955:'not a personal expense. 2 comp. gen. 429 1923. see also 11 comp. gen. 247 1931 identification insignia to be',
9956:'worn on caps. 1 medical care the rule for medical care is that, except for illness directly resulting from the',
9957:'nature of the employment, medical care and treatment are personal to the employee and payment may not be made from',
9958:'appropriated funds unless provided for in a contract of employment or by statute or valid regulation. 57 comp. gen. 62',
9959:'1977; 53 comp. gen. 230 1973. the case most frequently cited for this rule is 22 comp. gen. 32 1942,',
9960:'which contains citations to many of the earlier decisions.156 exceptions have been recognized where a particular item could be justified',
9961:'as being primarily for the benefit of the government rather than the employees. the exceptions involve primarily physical examinations and',
9962:'inoculation. for example, appropriated funds were held available in the following cases: 41 comp. gen. 387 1961 desensitization treatment for',
9963:'a department of agriculture horticulturist with a known history of severe reaction to bee and wasp stings. 23 comp. gen.',
9964:'888 1944 purchase of drugs and their administration by private doctor to employees exposed to spinal meningitis in line of',
9965:'duty; otherwise, agency would have risked having to quarantine the employees and close the facility. b108693, apr. 8, 1952 xrays',
9966:'for weather bureau personnel being assigned to alaska, presumably necessitated by a high incidence of tuberculosis among eskimos. 156 although',
9967:'not directly related to medical care, there is a very early group of cases, on which the earlier medical care',
9968:'cases partly relied, standing for the proposition that appropriated funds are not available for the burial of a deceased civilian',
9969:'employee unless necessary for the health and/or safety of other employees, in which event the “reasonable expenses of a decent',
9970:'burial” are permissible. 3 comp. gen. 111 1923; 11 comp. dec. 789 1905; 6 comp. dec. 447 1899; 2 comp.',
9971:'dec. 347 1896. page 4245 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose by virtue of legislation enacted',
9972:'in 1946 and now found at 5 u.s.c. § 7901, each agency is authorized to establish a health service program',
9973:'to promote and maintain the physical and mental fitness of employees under its jurisdiction. the statute expressly limits authorized health',
9974:'service programs to 1 treatment of onthejob illness and dental conditions requiring emergency attention; 2 preemployment and other examinations; 3',
9975:'referral of employees to private physicians and dentists; and 4 preventive programs relating to health. under this legislative authority, the',
9976:'comptroller general advised, for example, that an agency could, upon determining that it will be in the government’s interest to',
9977:'do so, provide immunization against specific diseases without charge to employees. 47 comp. gen. 54 1967. in 57 comp. gen.',
9978:'62 1977, the comptroller general held that the environmental protection agency was authorized by 5 u.s.c. § 7901 to procure',
9979:'diagnostic and preventive psychological counseling services for its employees. the service could encompass problem identification, referral for treatment or rehabilitation',
9980:'to an appropriate service or resource, and followup to help an employee readjust to the job during and after treatment,',
9981:'but could not include the actual treatment and rehabilitation. actual treatment and rehabilitation remain the employee’s responsibility. in b270446, feb.',
9982:'11, 1997, provision of psychological assessment and referral services for customs service employees’ family members was determined to be for',
9983:'the benefit of the government and, therefore, permitted under 5 u.s.c. § 7901. the service’s employee assistance program may render',
9984:'these services for family members adversely affected by workrelated activities of, or traumatic incidents involving death or serious injury to,',
9985:'an employee in the line of duty carrying out the agency’s law enforcement activities. cf. 71 comp. gen. 527 1992',
9986:'a federal agency may not use appropriated funds to provide space for eldercare facilities for the adult relatives of agency',
9987:'employees, but may provide employee referral and counseling programs. in b198804, dec. 31, 1980, gao refused to expand the holding',
9988:'in 57 comp. gen. 62 to permit an agency to pay the expenses of alcoholism treatment and rehabilitation for one',
9989:'of its employees. treatment and rehabilitation, as stressed in 57 comp. gen. 62, are the employee’s responsibility. it made no',
9990:'difference that the employee had been erroneously advised that the expenses would be covered by her health insurance and had',
9991:'already page 4246 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose incurred the expenses, since the government cannot',
9992:'be bound by the unauthorized acts or representations of its agents. federal agencies are authorized under 5 u.s.c. § 7901',
9993:'to establish smoking cessation programs for their employees, and may use their operating appropriations to pay the costs. 68 comp.',
9994:'gen. 222 1989. in light of the body of evidence of the health hazards of smoking, the decision reasoned, programs',
9995:'to help employees quit smoking are clearly “preventive programs relating to health” for purposes of the statute.157 physical fitness programs',
9996:'may qualify as preventive health programs under 5 u.s.c. § 7901 to the extent permissible under applicable regulations such as',
9997:'office of management and budget circulars, the federal personnel manual, and regulations of the general services administration. in addition, it',
9998:'may be possible to justify some programs under the necessary expense concept without the need to invoke the statute. for',
9999:'example, in 63 comp. gen. 296 1984, gao applied the necessary expense doctrine to conclude that bureau of reclamation funds',
10000:'were available for physical exercise equipment to be used in a mandatory physical fitness program for firefighters. in 64 comp.',
10001:'gen. 835 1985, gao considered the scope of a permissible fitness program under section 7901, concluding that a program could',
10002:'include comprehensive physical fitness evaluations and laboratory blood tests. based on the statute alone, it could also include physical exercise.',
10003:'however, regulations then in effect precluded use of appropriated funds for physical exercise as part of a health service program.',
10004:'the decision further noted, as 63 comp. gen. 296 had held, that physical exercise costs incident to a mandatory program',
10005:'necessitated by the demands of designated positions could be paid as a necessary expense without the need to rely on',
10006:'5 u.s.c. § 7901. see also b216852o.m., mar. 6, 1985 discussing gao’s own authority to establish a fitness program; b216852,',
10007:'dec. 17, 1984 nondecision letter. subsequent to 64 comp. gen. 835, the office of personnel management revised its regulations to',
10008:'include physical fitness programs and facilities as 157 the 1989 decision modified 64 comp. gen. 789 1985, which had found',
10009:'smoking cessation programs unauthorized. the 1985 case had correctly held that such programs were not a form of “medical care,”',
10010:'but had failed to properly evaluate them as preventive programs. page 4247 gao04261sp appropriations law—vol. i chapter 4 availability of',
10011:'appropriations: purpose permissible preventive health services. based on the revised regulations, an agency may now use appropriated funds to provide',
10012:'access to a private fitness center’s exercise facilities, although both gao and opm caution that expenditures of this type should',
10013:'be carefully monitored and should be undertaken only where all other resources have been considered and rejected. 70 comp. gen.',
10014:'190 1991. however, appropriated funds are not authorized for payment of: 1 employees’ membership fees to a contracted private fitness',
10015:'center in advance of employees’ use of facilities b288013, dec. 11, 2001; or 2 registration fees for employee members of',
10016:'an agency’s onsite fitness center to participate in local competitive fitness or sports activities. participation in such events is generally',
10017:'a personal activity, not an essential part of a governmentsponsored preventive health program. 73 comp. gen. 169 1994. medical treatment',
10018:'not within the scope of 5 u.s.c. § 7901 remains subject to the general rule expressed in cases such as',
10019:'22 comp. gen. 32. thus, the cost of an ambulance called by an agency medical officer to take an employee',
10020:'to a hospital could not be paid from appropriated funds. b160272, nov. 14, 1966. this is the kind of expense',
10021:'that can be covered by employee health insurance plans. in another case, gao rejected the contention that medical expenses are',
10022:'automatically “necessary expenses,” and concluded that internal revenue service irs appropriations were not available to reimburse the state department for',
10023:'medical services provided to irs overseas employees and their dependents under the foreign service act of 1946. 53 comp. gen.',
10024:'230 1973. the decision noted that several other agencies had received specific statutory authority to participate in the program. a',
10025:'review of the decisions involving medical examinations will further illustrate the relationship of 5 u.s.c. § 7901 to the decisional',
10026:'rules. prior to the enactment of section 7901, a preemployment physical examination, the purpose of which was to determine an',
10027:'applicant’s eligibility for a federal job, was the applicant’s responsibility and was not chargeable to appropriated funds. 22 comp. gen.',
10028:'243 1942. applying the “primary benefit of the government” standard, however, the comptroller general found postemployment examinations permissible in certain',
10029:'situations. thus, in 22 comp. gen. 32 1942, gao told the army that it could use its appropriations to provide',
10030:'periodic physical examinations to detect arsenic poisoning in civilian workers in a chemical warfare laboratory. the decision noted that instances',
10031:'of arsenic poisoning page 4248 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose “might have a depressing effect',
10032:'on the morale of fellow workers”158 and might make it more difficult to find qualified people to do the work.159',
10033:'in another case, a civilian employee joined the army during world war ii. he received a medical discharge, and thereafter',
10034:'applied for reinstatement to his former civilian job. gao advised that the agency could pay for a physical examination which',
10035:'it required prior to reinstatement. 23 comp. gen. 746 1944. in 1946, 5 u.s.c. § 7901 was enacted. now, agencies',
10036:'have specific authority to include medical examinations, including preemployment examinations, without charge to applicants, in the health programs they are',
10037:'authorized to establish. 30 comp. gen. 493 1951. while the statute authorizes establishment of government programs, it does not authorize',
10038:'the reimbursement of privately incurred expenses. thus, an applicant who declines to use an available government doctor for a preemployment',
10039:'examination and instead chooses to have it performed by a private doctor may not be reimbursed. 31 comp. gen. 465',
10040:'1952. in situations not covered by the statute, the “primary benefit of the government” test continues to apply. thus, based',
10041:'on the earlier precedents, the cost of medical examinations by private physicians was approved in the following cases: 30 comp.',
10042:'gen. 387 1951 physical examinations of department of agriculture employees engaged in testing repellents and insecticides for use by the',
10043:'armed forces; no government medical facilities available. 41 comp. gen. 531 1962 annual physical examinations for saint lawrence seaway development',
10044:'corporation employees engaged in strenuous physical work, often under severe weather conditions; no public health facilities in area. the examinations',
10045:'in both of the above cases could have been included in an authorized health service program. as noted, however, facilities',
10046:'were not available in either case. thus, since the examinations were for the primary benefit of the government, appropriated funds',
10047:'were available to have them 158 the morale of the poisoned workers would not be particularly enhanced either. 159 while',
10048:'this may sound heartless, the expenditure could be justified only if it was determined to be necessary to carry out',
10049:'the objects of the appropriation, and the appropriation in this instance was for chemical warfare service, not for employee health.',
10050:'page 4249 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose performed by private physicians. see also 73 comp.',
10051:'gen. 219 1994 national transportation safety board could reimburse air safety investigators for the costs of physical exams required to',
10052:'obtain a federal aviation administration faa medical certificate if the agency’s public health facility has no faacertified physician; b286137, feb.',
10053:'21, 2001 u.s. geological survey could pay for eye examinations for employees whose work requires visual acuity, but may not',
10054:'pay for their prescription eyeglasses, which are personal and useful to employees who need them inside, as well as outside,',
10055:'the workplace. in 65 comp. gen. 677 1986, the navy could pay for a medical examination required for a private',
10056:'individual joining a government research exercise under invitational travel orders. although government medical facilities were presumably available, there was no',
10057:'need to note this fact in the decision. since the individual was neither a government employee nor an applicant for',
10058:'a government job, she could not be required to use the government facility and, since the navy wanted her participation,',
10059:'it could not very well expect her to bear the expense. conversely, in b253159, nov. 22, 1993, the costs of',
10060:'medical examinations performed by private physicians for two centers for disease control and prevention employees and their dependents were not',
10061:'reimbursable because the examinations were neither required by the agency nor for the benefit of the government. the two employees',
10062:'and their dependents obtained the examinations in preparation for their relocation to assignments outside the united states. see also a.',
10063:'carter, jr., gsbca no. 15435, 011 b.c.a. ¶ 31,404 apr. 9, 2001 department of defense should reimburse its civilian employee',
10064:'for dependents’ immunizations, and may reimburse him for dependents’ physical examinations both required to obtain return visas to the united',
10065:'states, if the navy determines that the examinations were primarily for the benefit of the government. 2 purchase of healthrelated',
10066:'items160 the purchase of healthrelated items, while conceptually related to the medical care cases, is also an application of the',
10067:'“personal expense” rule set forth in 3 comp. gen. 433, cited at the beginning of this section, that personal equipment',
10068:'needed to qualify an employee to perform the regular duties of his or her position may not be paid from',
10069:'appropriated funds. the 160 see also “wearing apparel” in section c.13.i for related cases. page 4250 gao04261sp appropriations law—vol. i',
10070:'chapter 4 availability of appropriations: purpose rule is illustrated in b187246, june 15, 1977. there, a community services administration employee’s',
10071:'doctor had placed him under certain restrictions because of a back injury. specifically, he was to use a “sacroease positioner”',
10072:'for his office chair and could drive cars only with a minimum 116inch wheel base, bucket seats, and full power.',
10073:'while the equipment may have been necessary for that particular individual to perform his duties, it was not essential to',
10074:'the transaction of official business from the government’s standpoint. therefore, the items could not be provided from appropriated funds. in',
10075:'b166411, sept. 3, 1975, an employee who, as a result of a back injury, needed a bedboard while traveling could',
10076:'not be reimbursed beyond the normal per diem. the bedboard was a personal expense. similarly, gratuities for wheelchair services while',
10077:'traveling were held nonreimbursable in b151701, july 3, 1963. a different type of situation arose in b215640, jan. 14, 1985.',
10078:'an agency asked whether it could purchase a heavyduty office chair for an employee who needed extra physical support because',
10079:'he weighed over 300 pounds and had broken 15 regular chairs. while the particular type of chair in question was',
10080:'necessitated by the employee’s physical condition, it is nevertheless the case that an office chair is not “personal equipment” but',
10081:'is an item the government is normally expected to provide for its employees. the purchase was therefore authorized. another exception',
10082:'occurred in 23 comp. gen. 831 1944. there, gao approved the rental of an amplifying device to be attached to',
10083:'an official telephone for use by an employee with a hearing handicap. the device was seen as a means of',
10084:'obtaining the best results from available personnel. the precedent value of this decision is somewhat speculative. on the one hand,',
10085:'the device would not become the property of the individual. yet on the other hand, the decision seems to have',
10086:'been based largely on the difficulty of hiring “qualified” employees in view of the wartime draft situation. whether consideration was',
10087:'given to hiring women is not mentioned. generally, however, exceptions stem from some statutory basis. thus, in 56 comp. gen.',
10088:'398 1977, the comptroller general approved the purchase of a motorized wheelchair for use by a social security administration employee.',
10089:'the decision emphasized that a wheelchair is normally the employee’s personal expense. in this case, however, the employee had his',
10090:'own nonpowered wheelchair and needed a motorized wheelchair only because the agency had not complied with the architectural barriers act',
10091:'of page 4251 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose 1968. the wheelchair would, of course, become',
10092:'the property of the government and was approved only as a temporary expedient pending compliance with the statute. one important',
10093:'statute in this regard is the rehabilitation act of 1973, 29 u.s.c. § 791. pursuant to the rehabilitation act, federal',
10094:'agencies are required to make “reasonable accommodations” for the known physical or mental limitations of qualified employees with disabilities. see',
10095:'29 c.f.r. §§ 1614.203b, 1630.9a. we discuss the rehabilitation act in the next section. healthrelated items may also be authorized',
10096:'as “special protective equipment” under 5 u.s.c. § 7903, discussed later in this chapter in section c.13.i. thus, prescription ground',
10097:'safety glasses may be purchased for employees engaged in hazardous duties. the glasses become and remain the property of the',
10098:'government. the government can also pay the cost of related eye refraction examinations in limited circumstances. 51 comp. gen. 775',
10099:'1972. relying on 3 comp. gen. 433 rather than 5 u.s.c. § 7903, gao, in 45 comp. gen. 215 1965,',
10100:'approved the purchase of special prescription filter spectacles and clinical eye examinations necessary to obtain the proper prescription for employees',
10101:'operating stereoscopic map plotting instruments. employees who did not use special glasses frequently lost the required visual skills before reaching',
10102:'the normal retirement age. also, the special glasses would be of no personal use to the employees except during working',
10103:'hours and would remain the property of the government. however, the purchase of eyeglasses for employees who work at video',
10104:'display terminals is not authorized. there is no applicable safety standard in the occupational safety and health act, 29 u.s.c.',
10105:'§§ 651–678, the work is not or at least has not yet been found to be hazardous to the eyes',
10106:'if proper care is used, and not all employees who work at terminals need eyeglasses. 63 comp. gen. 278 1984.',
10107:'see also b286137, feb. 21, 2001 u.s. geological survey may use appropriated funds to provide eye examinations for certain employees',
10108:'for the benefit of the government, but it may not provide these employees with prescription eyeglasses that would not be',
10109:'for exclusive use at work. page 4252 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose the 1980s saw',
10110:'a veritable flood of cases involving the purchase of air purifiers “smokeeaters” as the campaign against smoking became a cause',
10111:'celebre. the rules, distilled from several decisions,161 are as follows: appropriated funds are not available to purchase air purifiers for',
10112:'the private office of an employee who objects to tobacco smoke unless the employee’s hypersensitivity to smoke qualifies him or',
10113:'her as handicapped under the rehabilitation act of 1973. air purifiers may be purchased for “common areas” such as reading',
10114:'rooms. air purifiers may be placed on the desks of employees who smoke if they will provide a general benefit',
10115:'to all employees working in the area. in 2002, consistent with executive order no. 13058, protecting federal employees and the',
10116:'public from exposure to tobacco smoke in the federal workplace, 62 fed. reg. 43,451 aug. 9, 1997, the general services',
10117:'administration prohibited the smoking of tobacco products in all interior space owned, rented, or leased by the executive branch, and',
10118:'in any outdoor areas under executive branch control in front of air intake ducts. 41 c.f.r. § 10274.315. another related',
10119:'line of decisions addresses the purchase of bottled drinking water for use in federal work facilities where the safety of',
10120:'municipal or locally provided water is at issue. generally, appropriated funds are not available to pay for bottled water for',
10121:'the personal use of employees. gao has made an exception where a building’s water supply is unhealthy or unpotable. see,',
10122:'for example, b247871, apr. 10, 1992, where a problem with the water supply system in a building caused lead content',
10123:'to exceed the maximum contaminant level and justified the purchase of bottled water for employees until the problems with the',
10124:'system could be resolved. 3 the rehabilitation act the rehabilitation act of 1973, as amended, 29 u.s.c. §§ 701–797, establishes',
10125:'a federal policy in support of nondiscriminatory employment of 161 64 comp. gen. 789 1985, modified on other grounds, 68',
10126:'comp. gen. 222 1989; 63 comp. gen. 115 1983; 62 comp. gen. 653 1983; 61 comp. gen. 634 1982; b213666,',
10127:'july 26, 1984; b215108, july 23, 1984. page 4253 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose individuals',
10128:'with a disability. consistent with that policy, the federal government, its contractors, and federally funded entities are prohibited from discriminating',
10129:'against employees who have physical or mental impairments that substantially limit one or more major life activities but who can',
10130:'perform the essential functions of the position they hold or apply for, with or without reasonable accommodation. 29 u.s.c. §',
10131:'791; 29 c.f.r. §§ 1614.203, 16302. the rehabilitation act requires federal agencies to assume an affirmative leadership role in promoting',
10132:'the employment of qualified handicapped individuals. 29 u.s.c. § 791b; see also 29 u.s.c. § 701b2. the rehabilitation act is',
10133:'related to the probably better known americans with disabilities act ada of 1990, pub. l. no. 101336, title i, §',
10134:'101, 104 stat. 330 july 26, 1990, codified at 42 u.s.c. §§ 12101 et seq. although the ada does not',
10135:'apply to federal employers [42 u.s.c. § 121115bi; 29 c.f.r. § 1630.2e2i], the ada’s standards are used to determine whether',
10136:'agencies are in compliance with the rehabilitation act’s requirements for employment of qualified individuals with disabilities. 29 u.s.c. § 791g.162',
10137:'under equal employment opportunity regulations, federal agencies are required to make “reasonable accommodations” for the known physical or mental limitations',
10138:'of qualified employees with disabilities, unless the accommodations would impose an undue hardship on the agency’s program. 29 c.f.r. §§',
10139:'1630.9a, 1614.203b. see b291208, apr. 9, 2003; b243300, sept. 17, 1991. while gao has no jurisdiction over substantive claims brought',
10140:'against federal agencies under the rehabilitation act, we have responded to agency inquiries concerning the propriety of using appropriated funds',
10141:'for expenditures or informal settlement awards under the act. see 72 comp. gen. 111 1993; 69 comp. gen. 470 1990.',
10142:'questions occasionally arise concerning whether an agency’s provision of a proposed, or requested, accommodation complies with federal appropriations principles see,',
10143:'e.g., b240271, oct. 15, 1990; whether an expense claimed by an employee is reimbursable or must be borne by the',
10144:'employee see, e.g., 68 comp. gen. 242 1989; or whether an item or service may appropriately be provided under the',
10145:'rehabilitation act as a reasonable accommodation, 162 we note that congress enacted the rehabilitation act in 1973. it modeled the',
10146:'now more familiar americans with disabilities act on the rehabilitation act, adopting the same definition of “disability” and its interpretation',
10147:'by courts. 42 u.s.c. § 12201a. see toyota motor manufacturing, kentucky, inc. v. williams, 534 u.s. 184, 193 2002. page',
10148:'4254 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose even though not initially viewed as such see, e.g.,',
10149:'b291208, apr. 9, 2003. we discuss these three decisions, and others, below. in addressing these questions, we recognize that agencies',
10150:'may expend appropriated funds to accomplish the purposes of the rehabilitation act when acting under the act’s authority and the',
10151:'regulatory standards that govern its application. b240271, oct. 15, 1990. an expenditure that might be viewed as personal in nature',
10152:'but for the rehabilitation act is a proper use of an agency’s appropriation when incurred in satisfaction of the act’s',
10153:'requirements. thus, in b240271, supra, gao advised that the purchase of a motorized wheelchair for a quadriplegic employee who spent',
10154:'half of his time on official travel could be regarded as a “reasonable accommodation” under 29 c.f.r. § 1630.9, on',
10155:'condition that the wheelchair remain the property of the government. similarly, in b243300, sept. 17, 1991, gao determined that an',
10156:'agency could pay for wheelchair van transportation as a reasonable accommodation under the rehabilitation act for an employee severely handicapped',
10157:'by cerebral palsy. the employee needed the service for assistance in returning home when her disability affected her at work',
10158:'in a manner that temporarily rendered her unable to walk. since this condition occurred only about three times a year,',
10159:'the cost to the agency for the service would be minimal. the employment of reading assistants for blind employees and',
10160:'interpreting assistants for deaf employees is covered. cf. 72 comp. gen. 305 1993 the department of education may pay for',
10161:'personal assistants for handicapped grant and compliance reviewers who are not federal employees as a cost of acquiring the personal',
10162:'services of these reviewers. the rehabilitation act has also been held applicable to parking expenses. as a general matter, parking',
10163:'incident to an employee’s commute between his residence and permanent duty station is a personal expense see section c.13.k. however,',
10164:'if severely disabled employees must pay parking costs higher than those paid by nondisabled employees working at the same facility,163',
10165:'the agency can subsidize the difference. 63 comp. gen. 270 1984; see also b291208, apr. 9, 2003, discussed in detail',
10166:'in this chapter, section c.13.j. 163 for example, the disabled employee may have to park closer to the facility at',
10167:'higher rates. page 4255 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose other types of personal expenses that',
10168:'have been recognized as reasonable accommodations under the rehabilitation act for employees with disabilities include— baggage handling fees, to the',
10169:'extent they were incurred as the result of the employee’s disability and exceeded similar expenses a nondisabled person would incur',
10170:'in a similar situation 68 comp. gen. 242 1989; additional subsistence expenses incurred by an employee who, with supervisory approval,',
10171:'began a required temporary duty assignment 3 days early, driving from denver through mountainous terrain to san francisco, and delayed',
10172:'the return trip by 2 days because of a severe snowstorm. under the circumstances the employee exercised good judgment and',
10173:'prudence by extending his travel time in view of his disability 64 comp. gen. 310 1985; shipment of an employee’s',
10174:'specially equipped vehicle in connection with a permanent change of duty station from california to washington, d.c., which the agency',
10175:'clearly justified as a cost beneficial, reasonable accommodation under the circumstances 64 comp. gen. 30 1984; and travel expenses and',
10176:'per diem for an attendant accompanying an employee who was required to travel to an unfamiliar area in connection with',
10177:'a permanent change of duty station. the attendant’s travel expense and per diem constituted a necessary expense under the circumstances.',
10178:'59 comp. gen. 461 1980. the costs of structural changes to an employee’s home were not considered a reasonable accommodation',
10179:'under the rehabilitation act. the employee had argued that the changes were required as a result of his assignment to',
10180:'a new permanent duty station. even though the modifications were necessary to facilitate his mobility, they were made to his',
10181:'privately owned property, and therefore, did not constitute a “reasonable accommodation” under the statute or regulations. b266286, oct. 11, 1996.',
10182:'d. office furnishings an agency’s appropriations are available without question to furnish the decorative items space it occupies with such',
10183:'necessary items as desks, filing cabinets, and other ordinary office equipment. questions occasionally arise when the item to be procured',
10184:'is decorative rather than utilitarian. page 4256 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose the availability of',
10185:'appropriations for certain decorative items has long been recognized. in 7 comp. dec. 1 1900, the comptroller of the treasury',
10186:'advised the secretary of the treasury that “paintings suitable for the decoration of rooms” were within the meaning of the',
10187:'term “furniture.” therefore, an appropriation for the furnishing of public buildings was available to purchase cases and glass coverings for',
10188:'paintings of deceased judges. the paintings had been donated to the government for display in a courtroom. the comptroller followed',
10189:'this decision in 9 comp. dec. 807 1903, holding that treasury appropriations were available to buy portraits as furniture for',
10190:'the ellis island immigration station if administratively determined “necessary for the public service.” citing both of these decisions, the comptroller',
10191:'general held in b178225, apr. 11, 1973, that the appropriation for salaries and expenses of the tax court was available',
10192:'for portraits of the chief judges of the tax court, to be hung the portraits, not the judges in the',
10193:'main courtroom. similarly, the tax court could purchase artwork and other decorative items for judges’ individual offices. 64 comp. gen.',
10194:'796 1985. other decisions approving the use of appropriated funds for decorative items are b143886, sept. 14, 1960 oil painting',
10195:'of agency head for “historical purposes” and public display; b121909, dec. 9, 1954 “solid walnut desk mount attached to a',
10196:'name plate”; b114692, may 13, 1953 framing of presidential certificates of appointment for display in the appointee’s office. purchase of',
10197:'decorative items for federal buildings is now covered in the federal property management regulations, 41 c.f.r. § 101.26.1032 2003. the',
10198:'regulations authorize expenditures for pictures, objects of art, plants, flowers both artificial and real, and other similar items. however, such',
10199:'items may not be purchased solely for the personal convenience or to satisfy the personal desire of an official or',
10200:'employee. the regulation was discussed and the rule restated in 60 comp. gen. 580 1981. decorative items may be purchased',
10201:'if the purchase is consistent with workrelated objectives and the items to be purchased are not page 4257 gao04261sp appropriations',
10202:'law—vol. i chapter 4 availability of appropriations: purpose e. personal qualification expenses “personal convenience” items.164 the determination of “necessity” is',
10203:'within the agency’s discretion, subject to the regulations. the regulations apply equally to space leased by an agency in a',
10204:'privately owned building. see also 64 comp. gen. 796 1985; 63 comp. gen. 110, 113 1983. as noted, one type',
10205:'of permissible decorative item is plants. a restriction in a 1980 appropriation act prohibited the use of funds for plant',
10206:'maintenance contracts. the comptroller general construed this provision to apply to office space to which particular federal employees were actually',
10207:'assigned. the provisions legislative history suggested that it was not intended to apply to outdoor plants or to plants in',
10208:'common areas that were not the assigned work space of any particular employee or group of employees. 59 comp. gen.',
10209:'428 1980. generally, expenses necessary to qualify a government employee to do his or her job are personal expenses and',
10210:'not chargeable to appropriated funds. as stated in an early decision: “that which is required of a person to become',
10211:'invested with an office must be done at his own expense unless specific provision is made by law for payment',
10212:'by the government.” 2 comp. dec. 262, 263 1895. somewhat coldly, the comptroller added, “if he does not desire the',
10213:'office, he need not accept it.” id. see also united states v. van duzee, 140 u.s. 169, 171 1891 “it',
10214:'is the duty of persons receiving appointments from the government …to qualify themselves for the office”. in a 1994 decision,',
10215:'gao recognized that federal law has subjected the federal government to state regulation in some areas, particularly in the area',
10216:'of environmental regulation, and concluded that where federal employees are required by federal law to comply with state and local',
10217:'licensing regulations, the employee’s agency can use appropriations to cover the cost of obtaining the license necessary to perform the',
10218:'regulated activity. 73 comp. gen. 171 1994 asbestos abatement license required by south carolina; water treatment foreman’s license required by',
10219:'texas; 164 the decision also noted that the items must be for permanent rather than “seasonal” use. 60 comp. gen.',
10220:'at 582. the rule prohibiting use of appropriated funds for seasonal e.g., holiday decorations has since been modified. see 67',
10221:'comp. gen. 87 1987, discussed in this chapter, section c.13.g. page 4258 gao04261sp appropriations law—vol. i chapter 4 availability of',
10222:'appropriations: purpose pesticide and herbicide application license required by north carolina. in that decision, gao noted that federal law required',
10223:'that air force activities in these areas conform to the regulatory requirements of the states. “while the license or permit',
10224:'is often obtained in the name of the [air force] member, the primary interest in obtaining the license lies with',
10225:'the air force …any personal benefit that air force members receive from the acquisition of the licenses is nominal and',
10226:'incidental to the performance of their official duties.” id. at 173. gao distinguished such licenses from the licensing requirements of',
10227:'professional personnel such as teachers, accountants, engineers, lawyers, doctors, and nurses. “these individuals are fully aware of the licensing requirements',
10228:'of their professions from the time they begin their professional education, and of the fact that society expects them to',
10229:'fully qualify themselves for the performance of their chosen professions. in that sense, the licensing requirements are considered to be',
10230:'more for the personal benefit of the individuals than for their employers.” id. gao noted, also, that driver’s licenses are',
10231:'considered for the personal benefit of the employee. id. in 2001, congress enacted legislation permitting agencies to use appropriations for',
10232:'“expenses for employees to obtain professional credentials, including expenses for professional accreditation, state imposed and professional licenses, and professional certification;',
10233:'and examinations to obtain such credentials.” pub. l. no. 107107, § 1112a, 115 stat. 1238 apr. 12, 2001, codified at',
10234:'5 u.s.c. § 5757.165 the statutory language does not create an entitlement; instead, it authorizes agencies to consider such expenses',
10235:'as payable from agency appropriations if the agency chooses to cover them. 165 the reader should note that in pub.',
10236:'l. no. 107273, § 207a, 116 stat. 1757, 1779–1780 nov. 2, 2002, congress enacted another section 5757 of title 5',
10237:'of the united states code. there are now two sections in the code numbered 5757. they are not related. page',
10238:'4259 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose neither the statute nor its legislative history defines the',
10239:'terms “professional credentials,” “professional accreditation,” and “professional certification.” gao has not had occasion to interpret and apply the statute. nevertheless,',
10240:'the statute and the 1994 decision together appear to cover many, if not most, qualification expenses that gao previously found',
10241:'to be personal to the employee, including actuarial accreditation b286026, june 12, 2001, licenses to practice medicine b277033, june 27,',
10242:'1997, a certified government financial manager designation b260771, oct. 11, 1995, and professional engineering certificates b248955, july 24, 1992. see',
10243:'also section c.12.b of this chapter for a discussion of attorneys’ bar membership fees. it is not clear whether the',
10244:'statute covers driver’s licenses. historically, with a few exceptions, a driver’s license was considered a personal expense. 21 comp. gen.',
10245:'769, 772 1942; 6 comp. gen. 432 1926; c23 comp. dec. 386 1917. an exception was recognized in b115463, sept.',
10246:'18, 1953, for army civilian employees on temporary duty tdy of at least 6 months’ duration in foreign countries, where',
10247:'the employees did not already possess drivers licenses, operating a motor vehicle was not part of the job for which',
10248:'the employees were hired, but the army wanted to include driving as part of their tdy duties as a less',
10249:'expensive alternative to hiring additional personnel, and the license was required by the host country. see also b257895, oct. 28,',
10250:'1994 national security agency may pay for commercial licenses where the license benefited the agency and was not a personal',
10251:'qualification for the employee’s position; b87138o.m., july 19, 1949 virgin islands. as noted above, in 73 comp. gen. 171, which',
10252:'concluded that agencies may pay for licenses required by certain state and local regulations, gao expressly excluded driver’s licenses. 73',
10253:'comp. gen. at 173 “the cost of driver’s licenses are considered for the personal benefit of federal employees”. to the',
10254:'extent that an agency refers to the 2001 statute as authority to pay the cost of an employee’s driver’s license,',
10255:'the agency will have to find that the license is a professional credential, professional accreditation, stateimposed and professional license, or',
10256:'professional certification. another statute, 5 u.s.c. § 5945, specifically covers notary publics. it permits agencies to reimburse an employee whose',
10257:'job includes serving as a notary public the expense required to obtain the commission. 5 u.s.c. § 5945. the expense',
10258:'is reimbursable even though the employee uses the notarial power for private as well as government business. 36 comp. gen.',
10259:'465 1956. page 4260 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose f. photographs general rule: the cost',
10260:'of photographs of individual government employees is a personal expense not chargeable to appropriated funds in the absence of specific',
10261:'statutory authority. 31 comp. gen. 452 1952. thus, the dissemination to the press of photographs of a new agency official',
10262:'upon his appointment was held to be an improper expenditure in b111336, sept. 16, 1952. the rule is intended to',
10263:'prevent the use of public funds for the personal publicity of a particular individual. exceptions have accordingly been recognized where',
10264:'there is adequate justification that the expenditure is necessary to accomplish some purpose for which the appropriation was made. for',
10265:'example, the distribution of photographs of an area director of the equal employment opportunity commission eeoc was held permissible in',
10266:'47 comp. gen. 321 1967 where the purpose was to increase cooperation with the eeoc by publicizing its activities and',
10267:'functions. the decision further pointed out that the expense was chargeable to the fiscal year in which the photographs were',
10268:'taken rather than the year in which they were actually used. another acceptable justification is illustrated in b123613, june 1,',
10269:'1955, involving photographs of the under secretary of the interior. one of the under secretary’s functions is to represent the',
10270:'secretary in various parts of the country. the photographs were obtained in order to respond to requests by organizations in',
10271:'preparing programs or by the press, in connection with this official travel. similar justifications were found sufficient in b114344, may',
10272:'19, 1953, and b47547, feb. 15, 1945. photographs for use on identification cards or badges are permissible when administratively determined',
10273:'necessary to protect government property or for security reasons. 23 comp. gen. 494 1944; 20 comp. gen. 566 1941; 20',
10274:'comp. gen. 447 1941; 2 comp. gen. 429 1923. at one time, travel regulations did not provide for the reimbursement',
10275:'of passport photographs, and they were held to be nonreimbursable personal expenses unless and until the regulations should be amended.',
10276:'9 comp. gen. 311 1930. the regulations were subsequently amended and passport photographs are now reimbursable under 41 c.f.r. §',
10277:'30112.1 2003. see 52 comp. gen. 177 1972. while earlier decisions state the rule in terms of photographs of individual',
10278:'employees, it applies to other photographs as well. the expense will be page 4261 gao04261sp appropriations law—vol. i chapter 4',
10279:'availability of appropriations: purpose g. seasonal greeting cards and decorations permitted where it clearly constitutes a means of effecting a',
10280:'proper agency function and disallowed where adequate justification does not exist. for example, distribution of photographs of a department store',
10281:'display was viewed as a proper means of carrying out a statutory function of encouraging public cooperation toward economic stabilization.',
10282:'b113464, jan. 29, 1953. similar types of justification were found sufficient in b175434, apr. 11, 1972; b113026, jan. 19, 1953;',
10283:'and b15278, may 15, 1942. however, inadequate justification was found in b149493, dec. 28, 1977, in which a group photograph',
10284:'of interagency participants in a training symposium, sent free to participants, was held a personal, rather than a necessary, expense.',
10285:'similarly, photographs taken at the dedication of the klondike gold rush visitor center to be sent by the national park',
10286:'service as “mementos” to persons attending the ceremony were disallowed as a personal gift in b195896, oct. 22, 1979. 1',
10287:'greeting cards the cost of seasonal greeting cards is a personal expense to be borne by the officer who ordered',
10288:'and sent them, and may not be charged to public funds. in a 1957 case, an agency with overseas posts',
10289:'wanted to send christmas cards to “important individuals” in the countries where the posts were located. the agency tried to',
10290:'justify the expense as a means of disseminating information and thereby to promote mutual understanding. the comptroller general ruled, however,',
10291:'that the expense was a personal one and could not be paid from the agency’s appropriations. 37 comp. gen. 360',
10292:'1957. as to the purported justification, the comptroller general said “it seems to us that very little, if any, information',
10293:'in that regard is contained on the ordinary christmas greeting card.” id. at 361. see also 7 comp. gen. 481',
10294:'1928; b247563.4, dec. 11, 1996; b115132, june 17, 1953. it is immaterial that the card is “nonpersonal,” that is, sent',
10295:'by the agency and not containing the names of any individuals. the expenditure is still improper. 47 comp. gen. 314',
10296:'1967; b156724, july 7, 1965. in 47 comp. gen. 314, it was also held immaterial that the expenditure had been',
10297:'charged to a trust fund in which donations, which the agency was statutorily authorized to accept, had been deposited. transmitting',
10298:'the greetings in the form of a letter rather than a card does not legitimize the expenditure. in 64 comp.',
10299:'gen. 382 1985, an agency page 4262 gao04261sp appropriations law—vol. i h. traditional ceremonies chapter 4 availability of appropriations: purpose',
10300:'head sent out a letter stating that the entire staff of the agency “joins me in wishing you a joyous',
10301:'holiday. we look forward to working with you and your staff throughout the coming year.” a member of congress questioned',
10302:'the propriety of sending these letters in penalty mail envelopes. gao noted that the letter “transacts no official business” and',
10303:'“is the essence of a christmas card.” id. at 384. therefore, the costs should not have been charged to appropriated',
10304:'funds. while all of the above cases deal with christmas greetings, the rule would presumably apply equally to other holiday',
10305:'or seasonal cards. it would also apply to “greetings” not tied in to any particular holiday. b149151, july 20, 1962',
10306:'“thank you for hospitality” cards. the point is that while sending greetings may be a nice gesture, it is not',
10307:'the sort of thing that should be charged to the taxpayers. 2 seasonal decorations prior to 1987, based in part',
10308:'on the reasoning that seasonal decorations are significantly different from ordinary office furnishings designed for permanent use, it had been',
10309:'gao’s position that christmas decorations trees, lights, ornaments, etc. were not a proper charge to appropriated funds. 52 comp. gen.',
10310:'504 1973; b163764, feb. 25, 1977 nondecision letter. in 1987, gao overruled 52 comp. gen. 504, concluding that the rules',
10311:'for office decorations should be the same whether the decorations are seasonal or permanent. 67 comp. gen. 87 1987. thus,',
10312:'seasonal decorations are now permissible “where the purchase is consistent with workrelated objectives [such as enhancement of morale], agency or',
10313:'other applicable regulations, and the agency mission, and is not primarily for the personal convenience or satisfaction of a government',
10314:'employee.” id. at 88. see also b226781, jan. 11, 1988. in implementing this decision, agencies should be appropriately sensitive whatever',
10315:'that means with respect to the display of religious symbols. 67 comp. gen. at 89. the rationale of 67 comp.',
10316:'gen. 87 does not apply to christmas cards, which remain “basically individual good will gestures and are not part of',
10317:'a general effort to improve the work environment.” id. see also b247563.4, dec. 11, 1996. expenditures that might otherwise be',
10318:'prohibited as personal may be permissible when they are incurred incident to certain traditional page 4263 gao04261sp appropriations law—vol. i',
10319:'chapter 4 availability of appropriations: purpose ceremonies. groundbreaking ceremonies and dedication ceremonies for the laying of cornerstones in public buildings',
10320:'are the most common examples of such traditional ceremonies. for example, in b158831, june 8, 1966, the cost of flowers',
10321:'used as centerpieces at a dedication ceremony was held to be a proper expenditure. see also b247563.4, dec. 11, 1996',
10322:'floral centerpiece for use at awards ceremony. similarly, the cost of engraving and chromeplating a ceremonial shovel used in a',
10323:'groundbreaking ceremony was viewed as a necessary expense of the ceremony. 53 comp. gen. 119 1973. in the cited decision,',
10324:'however, the voucher could not be paid because there was no evidence as to who authorized the work, where the',
10325:'shovel originated, the subsequent use to be made of the shovel, and why there was a year’s delay between the',
10326:'ceremony and the engraving. expenses necessarily incident to a groundbreaking or cornerstone ceremony are chargeable to the appropriation for the',
10327:'construction of the building. b158831, june 8, 1966; b11884, aug. 26, 1940 cost of printing programs and invitations to cornerstone',
10328:'ceremony; a88307, aug. 21, 1937 recording of presidential speech and group photograph at cornerstone ceremony; b107165o.m., apr. 3, 1952 cost',
10329:'of dedication ceremony. but see b250450, may 3, 1993 grand opening of a new cafeteria located inside an existing federal',
10330:'building does not fall within the “traditional ceremony” exception. costs of food and entertainment provided for this event are not',
10331:'payable from appropriations for operating expenses, but may be chargeable to reception and representation funds then available. in 56 comp.',
10332:'gen. 81 1976, the rationale of these cases was extended to armed forces change of command ceremonies. the decision held',
10333:'that the cost of printing invitations to a change of command ceremony for a coast guard vessel could be paid',
10334:'from the coast guard’s appropriations for operating expenses. in view of the traditional role of change of command ceremonies in',
10335:'the military, the comptroller general concluded that the invitations were not inherently personal. the case was therefore distinguishable from the',
10336:'decisions previously discussed prohibiting the use of public funds for business cards and greeting cards. however, since expenditure of operating',
10337:'funds had not been approved for the costs of a reception following the change of command ceremony as required by',
10338:'army regulations, those costs were determined to be payable from official reception and representation funds for which the agency required',
10339:'no prior approval because these activities met the prerequisites for an “official reception for an incoming commander.” 69 comp. gen.',
10340:'242 1990. see page 4264 gao04261sp appropriations law—vol. i i. wearing apparel chapter 4 availability of appropriations: purpose section c.5',
10341:'of this chapter for a more general discussion of related subject matter. the “traditional ceremony” concept has also been applied',
10342:'to a vessel “christening” ceremony at a navy yard a74436, may 19, 1936, a uniformed services university of the health',
10343:'sciences annual graduation ceremony b211700, mar. 16, 1984, and a federal law enforcement training center’s graduation ceremony b240365.2, mar. 14,',
10344:'1996. the starting point is the principle that “every employee of the government is required to present himself for duty',
10345:'properly attired according to the requirements of his position.” 63 comp. gen. 245, 246 1984, quoting from b123223, june 22,',
10346:'1955. in other words, the government will not clothe the naked, at least where the naked are receiving government salaries.',
10347:'nevertheless, there are certain outoftheordinary items, required by the nature of the job, which the government should furnish. the test',
10348:'was described in 3 comp. gen. 433 1924, and that discussion is still relevant today: “in the absence of specific',
10349:'statutory authority for the purchase of personal equipment, particularly wearing apparel or parts thereof, the first question for consideration in',
10350:'connection with a proposed purchase of such equipment is whether the object for which the appropriation involved was made can',
10351:'be accomplished as expeditiously and satisfactorily from the government’s standpoint, without such equipment. if it be determined that use of',
10352:'the equipment is necessary in the accomplishment of the purposes of the appropriation, the next question to be considered is',
10353:'whether the equipment is such as the employee reasonably could be required to furnish as part of the personal equipment',
10354:'necessary to enable him to perform the regular duties of the position to which he was appointed or for which',
10355:'his services were engaged. unless the answer to both of these questions is in the negative, public funds can not',
10356:'be used for the purchase. in determining the first of these questions there is for consideration whether the government or',
10357:'the employee receives the principal benefit resulting from use of the equipment and whether an employee reasonably could be required',
10358:'to perform the service without the equipment. in connection with the page 4265 gao04261sp appropriations law—vol. i chapter 4 availability',
10359:'of appropriations: purpose second question the points ordinarily involved are whether the equipment is to be used by the employee',
10360:'in connection with his regular duties or only in emergencies or at infrequent intervals and whether such equipment is assigned',
10361:'to an employee for individual use or is intended for and actually to be used by different employees.” id. at',
10362:'433–34. under the rule set forth in 3 comp. gen. 433, most items of apparel were held to be the',
10363:'personal responsibility of the employee. e.g., 5 comp. gen. 318 1925 rubber boots and coats for custodial employees in a',
10364:'floodprone area; 2 comp. gen. 258 1922 coats and gloves for government drivers. but there were limited exceptions. thus, caps',
10365:'and gowns for staff workers at saint elizabeth’s hospital in washington were viewed as for the protection of the patients',
10366:'rather than the employees and could therefore be provided from appropriated funds as part of the hospital equipment. 2 comp.',
10367:'gen. 652 1923. see also 5 comp. gen. 517 1926. similarly, aprons for general laboratory use were held permissible in',
10368:'2 comp. gen. 382 1922. another exception was wading trousers for geological survey engineers as long as the trousers remained',
10369:'the property of the government and were not for the regular use of any particular employee. 4 comp. gen. 103',
10370:'1924. one category of apparel not permissible under the early decision was uniforms. uniforms were viewed as personal furnishings to',
10371:'be procured at the expense of the wearer. 24 comp. dec. 44 1917. there are now three general statutory provisions',
10372:'that permit the purchase of items of apparel from appropriated funds in certain circumstances. the first is 5 u.s.c. §',
10373:'7903, enacted as part of the administrative expenses act of 1946. it provides: “appropriations available for the procurement of supplies',
10374:'and material or equipment are available for the purchase and maintenance of special clothing and equipment for the protection of',
10375:'personnel in the performance of their assigned tasks. for the purpose of this section, ‘appropriations’ includes funds made available by',
10376:'statute [to wholly owned government corporations].” id. explanatory information provided. in order for an item to be authorized by 5',
10377:'u.s.c. § 7903, three tests must be met: 1 the item must be “special” and not part of the ordinary',
10378:'and usual furnishings an employee page 4266 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose may reasonably be',
10379:'expected to provide for himself; 2 the item must be for the benefit of the government, that is, essential to',
10380:'the safe and successful accomplishment of the work, and not solely for the protection of the employee, and 3 the',
10381:'employee must be engaged in hazardous duty. see 32 comp. gen. 229 1952; b193104, jan. 9, 1979. thus, this provision',
10382:'is but a slight liberalization of the rule in 3 comp. gen. 433. applying 5 u.s.c. § 7903, the comptroller',
10383:'general has held that raincoats and umbrellas for employees who must frequently go out in the rain are not special',
10384:'equipment but are personal items that the employee must furnish. b193104, jan. 9, 1979; b122484, feb. 15, 1955. similarly unauthorized',
10385:'are coveralls for mechanics b123223, june 22, 1955 and running shoes for department of energy nuclear materials couriers b234091, july',
10386:'7, 1989. nor does 5 u.s.c. § 7903 authorize reimbursement for ordinary clothing and toiletry items purchased by narcotics agents',
10387:'on a “moving” surveillance. b179057, may 14, 1974. an illustration of the type of apparel authorized by 5 u.s.c. §',
10388:'7903 is found in 51 comp. gen. 446 1972. there, the comptroller general advised the department of agriculture that snowmobile',
10389:'suits, mittens, boots, and crash helmets for personnel required to operate snowmobiles over rough and remote forest terrain were clearly',
10390:'authorized by the statute. similarly authorized are downfilled parkas for office of surface mining employees temporarily assigned to alaska or',
10391:'the high country of the western states. 63 comp. gen. 245 1984.166 conversely, the purchase of insulated coveralls by the',
10392:'u.s. army corps of engineers for the use of employees working outdoors in nearfreezing temperatures would be an improper use',
10393:'of appropriated funds, absent the agency’s determination that such cold weather clothing is necessary to satisfy occupational safety and health',
10394:'act standards, discussed in more detail below. b289683, oct. 7, 2002; b288828, oct. 3, 2002. items other than wearing apparel',
10395:'may be furnished under 5 u.s.c. § 7903 if the tests set forth above have been met. see, e.g., 28',
10396:'comp. gen. 236 1948 mosquito repellent for certain forest service employees. 166 the distinction between this case and the “foul',
10397:'weather” cases cited in the preceding paragraph is that an employee is expected to provide his or her own clothing',
10398:'suitable for the climate in which the employee normally works or resides. see b230820, apr. 25, 1988 nondecision letter. for',
10399:'example, it is not reasonable to expect an employee who normally lives and works in florida to own clothing suitable',
10400:'for alaska in january. page 4267 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose continuing the old rule,',
10401:'however, the comptroller general held that 5 u.s.c. § 7903 does not constitute general authority for the purchase of uniforms.',
10402:'32 comp. gen. 229 1952. congress addressed the uniform problem with the second general statutory provision under consideration, 5 u.s.c.',
10403:'§ 5901, the socalled federal employees uniform act, most recently amended by section 202 of the federal employees pay comparability',
10404:'act of 1990, contained in section 529 of the fiscal year 1991 treasury, postal service, and general government appropriation act,',
10405:'pub. l. no. 101509, 104 stat. 1389, 1456 nov. 5, 19901456 nov. 5, 1990. this provision authorizes annual appropriations to',
10406:'each agency, on a showing of necessity or desirability, to provide a uniform allowance of up to $400 a year',
10407:'or more if authorized under office of personnel management regulations to each employee who wears a uniform in the performance',
10408:'of official duties. the agency may pay a cash allowance or may furnish the uniform. note that 5 u.s.c. §',
10409:'5901 is merely an authorization of appropriations. an appropriation is still required in order for payments to be made or',
10410:'obligations incurred. 35 comp. gen. 306 1955. while the decision stated that specific appropriation language is preferable, it recognized that',
10411:'the inclusion of an item for uniforms in an agency’s budget request that is then incorporated into a lumpsum appropriation',
10412:'is legally sufficient. an example of an item that could properly be required under 5 u.s.c. § 5901 is frocks',
10413:'for department of agriculture meat grader employees. 57 comp. gen. 379, 383 1978. another example is robes for administrative law',
10414:'judges of the occupational safety and health review commission. b199492, sept. 18, 1980. the decision concluded merely that the expenditure',
10415:'would be legal, not that it was an especially good idea, pointing out that federal judges pay for their own',
10416:'robes. in 48 comp. gen. 678 1969, a national park service employee was given a uniform allowance but, in less',
10417:'than a year, was promoted to a higher position that required substantially different uniforms. the comptroller general held that the',
10418:'employee could receive the uniform allowance of his new position even though the sum of the two allowances would exceed',
10419:'the statutory annual ceiling. to hold otherwise would have been inconsistent with the statutory purpose. while the uniform allowance under',
10420:'5 u.s.c. § 5901 may be in cash or in kind, there is no similar option for “special clothing or',
10421:'equipment” under page 4268 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose 5 u.s.c. § 7903. the latter',
10422:'statute authorizes the furnishing of covered items in kind only. 46 comp. gen. 170 1966. the third piece of legislation',
10423:'that may permit the purchase of items of apparel from appropriated funds is the occupational safety and health act of',
10424:'1970 osha. section 19 of osha, 29 u.s.c. § 668, requires each federal agency to establish an occupational safety and',
10425:'health program and to acquire necessary safety and protective equipment. thus, protective clothing may be furnished by the government if',
10426:'the agency head determines that it is necessary under osha and its implementing regulations. under the osha authority, the following',
10427:'items have been held permissible: snowmobile suits, mittens, boots, and crash helmets for department of agriculture employees required to operate',
10428:'snowmobiles over rough and remote terrain. 51 comp. gen. 446 1972. this decision has already been noted in the discussion',
10429:'of 5 u.s.c. § 7903 above. the decision held that the items were justifiable on either basis. downfilled parkas for',
10430:'interior department employees temporarily assigned to alaska or the high country of the western states during the winter months. 63',
10431:'comp. gen. 245 1984. this decision is also noted under 5 u.s.c. § 7903. as with 51 comp. gen. 446,',
10432:'the items could be justified under either statute. protective footwear for drug enforcement administration agents assigned to temporary duty in',
10433:'jungle environments. the footwear remains the property of the united states and must be disposed of in accordance with the',
10434:'federal property management regulations. b187507, dec. 23, 1976. cooler coats and gloves for department of agriculture meat grader employees. 57',
10435:'comp. gen. 379 1978. ski boots for forest service snow rangers, where determined to be necessary protective equipment in a',
10436:'jobhazard analysis. b191594, dec. 20, 1978. steeltoe safety shoes for an internal revenue service supply clerk whose work includes moving',
10437:'heavy objects. 67 comp. gen. 104 1987. this item also could have been justified under 5 u.s.c. § 7903. id.',
10438:'page 4269 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose if an item is authorized under osha, it',
10439:'is unnecessary to determine whether it meets the tests under 5 u.s.c. § 7903. e.g., b187507, supra. as noted in',
10440:'the above listing, however, several of the decisions have discussed both statutes. if an item does not qualify under osha,',
10441:'it is still necessary to examine the other possibilities. e.g. b234091, july 7, 1989 running shoes unauthorized under either statute.',
10442:'thus, three statutes under which purchase of wearing apparel may be authorized are 5 u.s.c. § 7903 special clothing for',
10443:'hazardous occupations, 5 u.s.c. § 5901 uniform allowances, and 29 u.s.c. § 668 protective clothing under osha. two decisions summarizing',
10444:'all three statutes are 63 comp. gen. 245 1984 and b289683, oct. 7, 2002. some agencies also have specific authority',
10445:'to provide uniforms or clothing allowances to their employees. see, e.g., 10 u.s.c. §§ 775 and 1593; 22 u.s.c. §§',
10446:'147414, 2396a12, and 2669e; and 37 u.s.c. §§ 415–419. however, if neither general nor specific authorities apply, then the rule',
10447:'of 3 comp. gen. 433 continues to govern. for example, in b251189, apr. 8, 1993, gao held that the costs',
10448:'of business suits worn by agency for international development chauffeurs may not be reimbursed. such suits are not uniforms under',
10449:'section 636a12 of the foreign service act of 1961 22 u.s.c. § 2396a12 since they are worn as a part',
10450:'of customary business attire and provide no distinctive identification of the employees as a group. as such, the suits are',
10451:'a personal expense of the employees. another illustration of the continued applicability of the decisional rules is the rental of',
10452:'formal evening wear, a situation which, thus far at least, no one has suggested fits under any of the three',
10453:'statutes. in a 1955 case, an employee on travel status in england rented a dinner jacket to attend a dinner',
10454:'related to the purposes of the trip. based on the rule of 3 comp. gen. 433, the comptroller general denied',
10455:'reimbursement for the cost of renting the jacket. 35 comp. gen. 361 1955. “the claimant’s failure to take with him',
10456:'necessary clothing to meet reasonably anticipated personal necessities is not considered sufficient to shift the burden of the cost of',
10457:'procuring such clothing from personal to official business.” id. at 362. this decision was followed in a similar situation involving',
10458:'the rental of a tuxedo in 45 comp. gen. 272 1965, and again in 64 comp. gen. 6 1984. but',
10459:'see b256936, june 22, 1995 the department of state may use its representation appropriation funds to reimburse rental costs for',
10460:'formal morning attire required by ambassador and deputy chief of mission in representing the united states on occasions of state',
10461:'in great britain. page 4270 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose j. miscellaneous personal expenses a',
10462:'different situation was presented in 48 comp. gen. 48 1968, in which it was held that the secret service could',
10463:'pay the rental charges on formal dress attire required to be used by special agents when attending formal functions incident',
10464:'to their furnishing protective services to persons whom they are assigned to protect. in this situation, the purpose of the',
10465:'formal attire is not merely to be “socially acceptable,” but is necessary for security purposes, to make the agents less',
10466:'readily identifiable as such. see also 71 comp. gen. 447 1992. similarly, in the nottoodistant past, attorneys arguing before the',
10467:'supreme court were required to wear formal cutaway coats and striped pants. in b164811, july 28, 1969, gao approved reimbursement',
10468:'for the rental of these items by justice department attorneys who were only occasionally required to appear before the supreme',
10469:'court. a more recent case restating the rules is 67 comp. gen. 592 1988 advising agency to resolve certain conflicting',
10470:'information and pay or deny the claim accordingly. finally, the rules we have been discussing for wearing apparel apply to',
10471:'government employees. questions may arise with respect to nongovernment employees, in which event the answer is a pure application of',
10472:'the necessary expense doctrine, in light of whatever statutory authority may exist. for example, in b62281, dec. 27, 1946, the',
10473:'state department was administering a training program for citizens of the philippines to assist in postwar rehabilitation. the decision held',
10474:'that the government could provide “special purpose” clothing required for the training, such as uniforms, overalls, or work aprons. however,',
10475:'this could not include the furnishing of complete wardrobes adaptable to the cooler climate of the united states; this was',
10476:'a personal expense. see also 29 comp. gen. 507 1950 clothing for indigent narcotic patients upon release from public health',
10477:'service hospitals, as therapeutic measure to aid rehabilitation. several personal expense matters are dealt with elsewhere in this chapter, for',
10478:'example, the sections on entertainment and membership fees. apart from those topics specifically covered elsewhere, the preceding portions of this',
10479:'section cover the situations that have generated the largest number of cases. there are, however, other frequently encountered situations. 1',
10480:'commuting and parking one personal expense everyone is familiar with is commuting to and from work more precisely, between permanent',
10481:'residence and permanent duty location. the employee is expected to be at work; how the employee page 4271 gao04261sp appropriations',
10482:'law—vol. i chapter 4 availability of appropriations: purpose chooses to get there is entirely his or her own business. 27',
10483:'comp. gen. 1 1947; 16 comp. gen. 64 1936. along with commuting goes parking. it is equally clear that parking',
10484:'incident to ordinary commuting is also a personal expense. 63 comp. gen. 270 1984; 43 comp. gen. 131 1963; b162021,',
10485:'july 6, 1977. these cases stand for the proposition that the government may not be required to provide parking facilities',
10486:'for its employees. however, an agency may provide employee parking facilities if it determines that the lack of parking facilities',
10487:'will significantly impair the operating efficiency of the agency and will be detrimental to the hiring and retention of personnel.',
10488:'72 comp. gen. 139 1993; 49 comp. gen. 476 1970; b168946, feb. 26, 1970; b155372o.m., nov. 6, 1964. if severely',
10489:'disabled employees are forced to pay parking costs higher than those paid by nondisabled employees working at the same facility,167',
10490:'the agency can subsidize the difference. 63 comp. gen. 270 1984. for further information, see the rehabilitation act discussion in',
10491:'this chapter, section c.13.c. as several of the cases cited in the preceding paragraph discuss, agencies must generally obtain parking',
10492:'accommodations through the general services administration gsa under the federal property and administrative services act of 1949, as amended ch.',
10493:'288, 63 stat. 377 june 30, 1949, unless they have independent statutory authority or a delegation from gsa. see generally',
10494:'40 u.s.c. §§ 581 et seq. gsa regards a delegation of authority to lease parking facilities as a delegation of',
10495:'authority to enter into a service contract, which can be approved at the regional level, rather than a delegation of',
10496:'leasing authority. 41 c.f.r. § 102 73.2352003. if an agency has independent statutory or delegated authority to procure space and',
10497:'facilities and has made the requisite morale and efficiency determinations, it may provide for employee parking in a collective bargaining',
10498:'agreement. see 55 comp. gen. 1197 1976. a governmentwide provision in the fiscal year 1991 treasury, postal service, and general',
10499:'government appropriation act authorizes federal agencies to participate in state or local government programs designed to encourage employees to use',
10500:'public transportation. pub. l. no. 101509, § 629, 104 stat. 1389, 1478 nov. 5, 1990. thus, an agency could use',
10501:'its general operating appropriations to subsidize the use of discounted transit passes by its employees. the “subsidy” is not additional',
10502:'pay for purposes of 167 for example, the disabled employee may have to park closer to the facility at higher',
10503:'rates. page 4272 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose the prohibition in 5 u.s.c. § 5536.',
10504:'id. see also b243677, b243674, may 13, 1991. the legislation had a sunset date of december 31, 1993. in 1993,',
10505:'5 u.s.c. § 7905 was enacted, which authorizes each agency head to establish a program to encourage employees to use',
10506:'means other than single occupancy motor vehicles to commute to and from work. the purposes of this authority are to',
10507:'improve air quality and reduce traffic congestion. 5 u.s.c. § 7905 note. programs established under section 7905 may include such',
10508:'options as: transit passes or cash reimbursements for transit passes; furnishing space, facilities, or services to bicyclists; and nonmonetary incentives.',
10509:'5 u.s.c. § 7905b2. on april 21, 2000, the president issued executive order no. 13150, set out at 5 u.s.c.',
10510:'§ 7905 note, requiring federal agencies to implement a transportation fringe benefit program under the authority of section 7905 no',
10511:'later than october 1, 2000. in b291208, apr. 9, 2003, the commission on civil rights asked whether parking benefits for',
10512:'employees with disabilities, who commute to work in privately owned vehicles rather than by mass transit or in vanpools, may',
10513:'be included in the federal government’s transportation fringe benefit program. in this case, the parking fees could not be paid',
10514:'under the program authorized by 5 u.s.c. § 7905 and e xecutive order no. 13150, since payment would encourage employees',
10515:'to use privately owned vehicles for commuting contrary to the stated purposes of the program. however, gao noted that, if',
10516:'the commission employees with disabilities pay substantially more to park closer to the building than employees without disabilities, the differential',
10517:'portion may be paid under our holding in 63 comp. gen. 270 1984. 2 flexiplace an emerging issue for the',
10518:'federal government is “flexiplace.” employees on flexiplace schedules, also called telecommuting or telework, typically work at home but can work',
10519:'at other agencyapproved locations. over the past several years, both the president and congress have increasingly sought to encourage more',
10520:'widespread use of flexiplace. in 1994, then president clinton directed the head of each executive department or agency to establish',
10521:'a program to encourage and support the expansion of flexible familyfriendly work arrangements, including telecommuting and satellite locations. memorandum, expanding',
10522:'familyfriendly work arrangements in the executive branch, 30 weekly comp. pres. doc. 1468, 59 fed. reg. 36017 july 11, 1994.',
10523:'in section 260 of the treasury, postal service and general government appropriations act for fiscal year page 4273 gao04261sp appropriations',
10524:'law—vol. i chapter 4 availability of appropriations: purpose 1996, congress enacted permanent authority for federal agencies to spend money for',
10525:'the installation of telephone lines and related equipment in an employees residence and pay monthly fees for an employee authorized',
10526:'to work at home. pub. l. no. 10452, § 620, 106 stat. 468, 501 nov. 19, 1995 31 u.s.c. §',
10527:'1348 note. federal telework centers were authorized in 40 u.s.c. § 587, and executive agencies are required to make at',
10528:'least $50,000 available annually for expenses necessary to carry out a flexiplace work program. 40 u.s.c. § 587d2. more recently,',
10529:'section 359 of the 2001 department of transportation appropriations act required all executive agencies to establish a policy under which',
10530:'eligible employees may participate in telecommuting. the law also directed the office of personnel management to ensure that this requirement',
10531:'was applied to 25 percent of the federal workforce by april 2001 and to an additional 25 percent each year',
10532:'thereafter. pub. l. no. 106346, § 101a [title iii, § 359], 114 stat. 1356, 1356a36 oct. 23, 2000. while telephone',
10533:'lines and related equipment may be provided by the agency, increased utility expenses heating, air conditioning, lighting, etc. incurred by',
10534:'the employee by virtue of working at home are personal expenses and may not be reimbursed in the absence of',
10535:'statutory authority. 68 comp. gen. 502 1989. as the decision points out, along with the increased utility costs, the employee',
10536:'also incurs savings from reduced commuting, child care, meal, and/or clothing expenses. “how the balance should be struck, if at',
10537:'all, …is a legislative judgment.” id. at 506. the fact that the employee is participating in a mandatory workathome program,',
10538:'as opposed to voluntary, does not matter. the incremental costs of utilities associated with the residential workplace may not be',
10539:'reimbursed. 70 comp. gen. 631 1991. 3 miscellaneous employee expenses personal expense questions may occur in contexts that arise infrequently',
10540:'and for which there is little precedent. the rationale of the decisions cited and discussed throughout this section should provide',
10541:'the approach necessary to analyze the problem. for example, the forest service requested a lodge owner to furnish lodging and',
10542:'meals to a group of summer employees on temporary duty on a forest project in maine. while the forest service',
10543:'made the request on behalf of the employees, it did not contract directly with the lodge owner. the individual employees',
10544:'received a per diem allowance and were expected to settle their own accounts with the lodge. one of the employees',
10545:'left at the end of the page 4274 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose summer without',
10546:'paying his bill and the lodge owner filed a claim against the government. under these circumstances, the unpaid bill was',
10547:'nothing more than a personal debt of the individual and there was therefore no basis for government liability. b191110, sept.',
10548:'25, 1978. had the government contracted directly with the lodge, the result might have been different. see section on canceled',
10549:'hotel reservations in chapter 12 volume iii of the second edition of principles of federal appropriations law. in another case,',
10550:'the navy asked whether it could use appropriated funds to buy luggage for use by members of the navy’s recruit',
10551:'mobile training team. normally, luggage is a personal expense. the employee who travels on government business is generally expected to',
10552:'provide his or her own luggage. in this case, however, the members of the team traveled an average of 26',
10553:'weeks a year. the comptroller general applied the test set forth in 3 comp. gen. 433 1924, discussed at various',
10554:'points throughout this section, and accepted the navy’s judgment that it would be unreasonable to require the team members to',
10555:'furnish their own luggage in view of this excessive amount of travel. therefore, navy could buy the luggage, but only',
10556:'on the conditions that it would become navy property and be stored in navy facilities. in other words, the members',
10557:'could not use the luggage for any personal business. b200154, feb. 12, 1981. the comptroller general declined to state a',
10558:'precise rule as to how much travel is enough to justify government purchase of luggage, and emphasized that the purchase',
10559:'would be permitted only in highly unusual circumstances. the payment of a federal employee’s union dues is the employee’s personal',
10560:'obligation even though payment by payroll withholding is authorized. if an agency wrongfully fails to withhold the dues, it may',
10561:'use appropriated funds to reimburse the labor union, but must then recover the payment from the employee unless the debt',
10562:'can be waived. 60 comp. gen. 93 1980; b235386, nov. 16, 1989. another personal expense issue concerns payments for professional',
10563:'liability insurance. as discussed in section c.3.c of this chapter, concerning lawsuits against employees, certain federal employees may be vulnerable',
10564:'to civil tort suits by plaintiffs alleging that they have been injured by the actions of the employees. where liability',
10565:'is established, plaintiffs may be awarded compensatory damages, and in appropriate cases punitive damages, which the federal employee defendants would',
10566:'be required to pay. consequently, government employees whose jobs place them in page 4275 gao04261sp appropriations law—vol. i chapter 4',
10567:'availability of appropriations: purpose positions where they risk being sued may purchase liability insurance as a protection against such suits.',
10568:'see b211883o.m., dec. 14, 1983. in 1996, congress enacted legislation authorizing the reimbursement of “qualified employees” of the executive and',
10569:'legislative branches for up to onehalf the costs incurred by such employees for professional liability insurance. pub. l. no. 104208,',
10570:'title vi, § 636, 110 stat. 3009363 to 3009364 sept. 30, 1996. a qualified employee is an agency employee whose',
10571:'position is that of a law enforcement officer or a supervisor or management official. these reimbursements were to be paid',
10572:'from amounts appropriated for salaries and expenses. in 1998, congress amended the law to include as qualified employees justices, judges,',
10573:'judicial officers, supervisors, and managers within the judicial branch. pub. l. no. 105277, title vi, § 644, 112 stat. 2681,',
10574:'2681526 oct. 21, 1998. then, in 1999, congress once again amended the law to make the reimbursement mandatory as of',
10575:'october 1, 1999. pub. l. no. 10658, title vi, § 642a, 113 stat. 430, 477 sept. 29, 1999. these provisions',
10576:'were not enacted in the form of an amendment or addition to title 5 of the united states code, although',
10577:'their text is set out as an uncodified note under subchapter iv, “miscellaneous expenses,” preceding 5 u.s.c. § 5941. see',
10578:'generally b300866, may 30, 2003. 14. rewards this section discusses when appropriated funds may be used to offer and pay',
10579:'rewards. as a general proposition, statutory authority is needed. exactly how explicit this statutory authority has to be depends somewhat',
10580:'on the nature of the information or services for which the reward is contemplated and its relationship to the authority',
10581:'of the paying agency. a. rewards to informers 1 reward as “necessary expense” one group of decisions deals with rewards',
10582:'for the furnishing of information regarding violations of civil and criminal laws. the rule is that, if the information is',
10583:'“essential or necessary” to the effective administration and enforcement of the laws, a reward may be offered if it can',
10584:'be tied in to a page 4276 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose particular appropriation under',
10585:'the “necessary expense” theory.168 in that situation, the statutory authority does not have to expressly provide for the payment of',
10586:'rewards. if, however, the information is merely “helpful or desirable,” then more explicit statutory authority is needed. since the distinction',
10587:'is difficult to administer as a practical matter, statutory authority has been granted in many situations.169 the comptroller general addressed',
10588:'the issue in 8 comp. gen. 613, 614 1929, stating: “an appropriation general in terms is available to do the',
10589:'things essential to the accomplishment of the work authorized by the appropriation to be done. as to whether such an',
10590:'appropriation may properly be held available to pay a reward for the furnishing of information, not essential but probably helpful',
10591:'to the accomplishment of the authorized work, the decisions of the accounting officers have not been uniform. the doubt arises',
10592:'generally because such rewards are not necessarily in keeping with the value of the information furnished and possess elements of',
10593:'a gratuity or gift made in appreciation of helpful assistance rendered.” while the reward in that particular case was permitted,',
10594:'the decision announced that specific legislative authority would be required in the future. see also 9 comp. gen. 309 1930;',
10595:'a26777, may 22, 1929. 168 some of the “contest” cases, discussed above, do not concern payment of “rewards” to “informers,”',
10596:'yet nonetheless use a “necessary information” analysis. see, e.g., 70 comp. gen. 720 1991 national oceanic and atmospheric administration could',
10597:'pay cash prizes to certain fortunate fisherman returning “fish tags” to the government; b286536, nov. 17, 2000 public buildings service',
10598:'could use appropriated funds to pay for prizes in a drawing held in connection with customer satisfaction surveys, in order',
10599:'to develop customer satisfaction information. 169 in addition to the statutes discussed in the text, other examples are: 16 u.s.c.',
10600:'§ 668 information on capturing, buying or selling of bald eagles; 16 u.s.c. § 1540d violations of endangered species act;',
10601:'16 u.s.c. § 2409 antarctic conservation act of 1978; 18 u.s.c. § 1751g information concerning presidential assassinations or attempted assassinations;',
10602:'18 u.s.c. § 3056 rewards by the secret service; 21 u.s.c. § 886 drug abuse act; 39 u.s.c. § 404a8',
10603:'violations of postal laws; 50 u.s.c. § 47a illegal introduction, manufacture, acquisition, or export of special nuclear material or atomic',
10604:'weapons. page 4277 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose whether a reward to an informer is',
10605:'necessary or merely helpful depends largely on the nature of the agency’s organic authority and its appropriations language. for example,',
10606:'the forest service is responsible for protecting the national forests “against destruction by fire and depredations.” 16 u.s.c. § 551.',
10607:'it receives appropriations for expenses necessary for “forest protection and utilization.” under this authority, the comptroller general held that information',
10608:'relating to violations such as deliberately set forest fires, theft of timber, unauthorized occupancy, and vandalism could be considered necessary',
10609:'rather than just helpful, and the forest service could therefore offer rewards to informers without more specific statutory authority. b172259,',
10610:'apr. 29, 1971. see also 5 comp. dec. 118 1898. the ruling was extended in b172259, aug. 2, 1972, to',
10611:'cover “endorsements” the “endorsement” by an informant of an undercover agent to help him gain acceptance with the suspects. similarly,',
10612:'the commerce department could pay rewards to informers as a necessary expense under a provision of the export control act',
10613:'of 1949, ch. 11, § 6, 63 stat. 7 feb. 26, 1949, which authorized the obtaining of confidential information incident',
10614:'to enforcement of the act. b117628, jan. 21, 1954. the rule was also applied in b106230, nov. 30, 1951, in',
10615:'which gao advised the treasury department that rewards to informers for information or evidence on violations of the revenue, customs,',
10616:'or narcotics laws could be offered under an appropriation for the necessary expenses of law enforcement. as long as the',
10617:'information was necessary and not just helpful, more specific appropriations language was not needed. the result would be different if',
10618:'the agency did not have specific law enforcement authority. a.d. 6669, may 15, 1922. 2 payments to informers: internal revenue',
10619:'service one reward to informers most people are familiar with is the reward offered by the internal revenue service irs',
10620:'for the detection of tax cheats. while the pertinent internal revenue code provision does not use the term “reward,” it',
10621:'authorizes the payment of sums deemed necessary “for detecting and bringing to trial and punishment persons guilty of violating the',
10622:'internal revenue laws.” 26 u.s.c. § 7623. where information leads to an actual recovery of back taxes or penalties, irs',
10623:'may pay the informer a reward based on a percentage of the amount recovered, up to a 10 percent maximum',
10624:'set by regulation. gao approved this scheme as within the statutory authority in 3 comp. gen. 499 1924. the page',
10625:'4278 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose determinations of whether to pay a reward and, if',
10626:'so, its amount are discretionary and, short of a showing of no rational basis, are not reviewable by the courts',
10627:'or by gao. saracena v. united states, 508 f.2d 1333 ct. cl. 1975; krug v. united states, 168 f.3d 1307',
10628:'fed. cir. 1999 aff’g 41 fed. cl. 96 1998; informant v. united states, 46 fed. cl. 1 2000; b131689, june',
10629:'7, 1957; b10761, june 29, 1940; b5768, sept. 18, 1939; a96942, aug. 23, 1938. the same statute has been held',
10630:'to authorize rewards for information on violations where no tax or fine is collected. 24 comp. dec. 430 1918. the',
10631:'irs statute has been held to constitute an “indefinite reward offer.” the informant responds by his conduct, and an “enforceable',
10632:'contract” arises when the parties fix the amount of the reward. merrick v. united states, 846 f.2d 725 fed. cir.',
10633:'1988. the plaintiff in that case provided information on an illegal tax shelter in which 1,585 persons had invested, resulting',
10634:'in the recovery of over $10 million. the court upheld the position of the irs that the taxpayers were “related',
10635:'taxpayers” in a single tax avoidance scheme, thereby limiting the reward to $50,000 for the aggregate recovery rather than $50,000',
10636:'per person as the plaintiff had sought. merrick v. united states, 18 cl. ct. 718 1989. see also lewis v.',
10637:'united states, 70 f.3d 597, 601 fed. cir. 1995 applying a “similar statute” that authorized customs service awards. the issue',
10638:'in b137762.32, july 11, 1977 was whether irs could contract with an attorney representing an unnamed informant i.e., a “partially',
10639:'disclosed principal”. the decision discussed the general prohibition against contracting with a partially disclosed principal, but approved the proposed agreement,',
10640:'noting that the reasons for the rule in the ordinary procurement context did not apply to the irs reward situation.',
10641:'see also b117628, jan. 21, 1954. however, treasury regulations required that the informant’s identity be disclosed before any claim could',
10642:'actually be paid. therefore, disclosure would be necessary if and when a reward became payable but not before then. an',
10643:'additional issue in b137762.32 was when an obligation has to be recorded under 31 u.s.c. § 1501a. no contractual liability',
10644:'to make payment exists until irs has evaluated the worth of the information and has assessed and collected any underpaid',
10645:'taxes and penalties. this is when the appropriate irs official determines that a reward should be paid and its amount,',
10646:'and it is at this point that a recordable obligation arises. this is consistent with the federal circuit’s holding in',
10647:'merrick. page 4279 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose the internal revenue service may also make',
10648:'“support and maintenance” payments to informers under its general investigation and enforcement authority. in b183922, aug. 5, 1975, the comptroller',
10649:'general held that irs could not make payments to an informer who was simultaneously being paid by the justice department',
10650:'under its witness protection program. however, irs could make the payments if administratively determined to be necessary after the informer',
10651:'had been disenrolled from the justice departments program. 3 payments to informers: customs service the customs service also has statutory',
10652:'authority to pay rewards. under 19 u.s.c. § 1619, a person other than a government employee who detects and seizes',
10653:'any vessel, vehicle, aircraft, merchandise, or baggage subject to seizure and forfeiture under the customs or navigation laws, or who',
10654:'furnishes original information, leading to a monetary recovery, may be paid a reward of 25 percent of the amount recovered,',
10655:'not to exceed $250,000 in any case. rewards are payable from “appropriations available for the collection of the customs revenue.”',
10656:'id. § 1619d. this reward is in the nature of compensation for services rendered rather than a personal gratuity. 5',
10657:'comp. gen. 665 1926. the statute has been deemed mandatory in the sense that an informant who complies with its',
10658:'terms has a legal and judicially enforceable claim for the reward. doe v. united states, 100 f.3d 1576, 1582 fed.',
10659:'cir. 1996; wilson v. united states, 135 f.2d 1005 3rd cir. 1943; rickard v. united states, 11 cl. ct. 874',
10660:'1987; b217636, mar. 4, 1985 nondecision letter. the information furnished must be “original” information, that is, the first information the',
10661:'customs service has concerning the particular fraud or violation. lacy v. united states, 607 f.2d 951, 953 ct. cl. 1979;',
10662:'cornman v. united states, 409 f.2d 230, 234 ct. cl., cert. denied, 396 u.s. 960 1969; tyson v. united states,',
10663:'32 f. supp. 135, 136 ct. cl. 1940. in cases where the furnishing of information leads to recoveries from multiple',
10664:'parties, the monetary ceiling on the reward “for any case” applies to the information furnished, not to the number of',
10665:'recoveries it produces. cornman v. united states, supra, citing and following 24 comp. dec. 17 1917. page 4280 gao04261sp appropriations',
10666:'law—vol. i chapter 4 availability of appropriations: purpose liquidated damages assessed under customs bonds are “recoveries” for purposes of 19',
10667:'u.s.c. § 1619. 34 comp. gen. 70 1954. so are recoveries under bail bonds. 19 u.s.c. § 1619e. moneys received',
10668:'by customs officers as bribes, however, are not recoveries for purposes of the reward. 11 comp. gen. 486 1932. the',
10669:'statute applies to recoveries under the “customs laws or the navigation laws.” see 16 comp. gen. 1051 1937. recoveries under',
10670:'other laws generally do not qualify. thus, in 32 comp. gen. 405 1953, a reward could not be paid where',
10671:'recovery was made under several laws and the amount attributable to the customs laws or navigation laws could not be',
10672:'ascertained. similarly, a violation of the antidumping act is not a violation of the customs laws for purposes of 19',
10673:'u.s.c. § 1619. fraters valve & fitting co. v. united states, 347 f.2d 990 ct. cl. 1965. nor is a',
10674:'violation of the internal revenue laws. wilson v. united states, supra. but see doe v. united states, 47 fed. cl.',
10675:'367 2000. the reward is authorized, based on appraised value, if the item forfeited is destroyed or “delivered to any',
10676:'governmental agency for official use” rather than sold. under this provision, seized merchandise donated to state governmental agencies under general',
10677:'services administration gsa regulations qualifies for the reward since the statutory language is not limited to federal agencies. b146223, nov.',
10678:'27, 1961. similarly, where forfeited distilled spirits, wines, or beer, which are required by statute to be delivered to gsa',
10679:'for disposal, are subsequently given to “eleemosynary institutions” for medicinal purposes, the reward is payable because the initial delivery to',
10680:'gsa counts as delivery to a “governmental agency for official use” under 19 u.s.c. § 1619. b146223, feb. 2, 1962.',
10681:'b. missing government employees the only decisions that exist on rewards for locating missing government employees concern military deserters. no',
10682:'decision has been found discussing whether a reward could be offered for the apprehension of a military deserter in the',
10683:'absence of statutory authority, although one early case stated that “[t]here is no reward for the apprehension or delivery of',
10684:'a deserter by operation of law.” 20 comp. dec. 767 1914. the reason the issue has not been discussed is',
10685:'probably that the authority has existed by statute for a long time. for many years, a provision in the annual',
10686:'defense department appropriation acts authorized payment of expenses of the apprehension and delivery of deserters, including a small reward. in',
10687:'1984, the provision was made permanent and is now found at 10 u.s.c. § 9561. the coast guard also has',
10688:'permanent authority to offer rewards for the apprehension of deserters. 14 u.s.c. § 644. page 4281 gao04261sp appropriations law—vol. i',
10689:'chapter 4 availability of appropriations: purpose c. lost or missing government property thus, the decisions that do exist concern mainly',
10690:'questions of interpretation under the statutory language and implementing regulations. for example, the term “apprehension” was construed to permit payment',
10691:'of the reward where an army deserter voluntarily surrendered to a civil officer. 6 comp. gen. 479 1927. the statute',
10692:'and implementing regulations limit the amount payable as expenses, but this limitation applies only to the period before the deserter',
10693:'is returned to military control. expenses incurred after return to military control, for example, continued civil detention at the request',
10694:'of military authorities, are not subject to the limitation and may be paid. b179920, july 18, 1974; b147496o.m., jan. 4,',
10695:'1962. three early decisions permitted payment of expenses incurred in apprehending a deserter in excess of the statutory limit where',
10696:'the deserter was also wanted for other criminal offenses such as forgery or embezzlement. 16 comp. dec. 132 1909; 11',
10697:'comp. dec. 124 1904; b3591, may 27, 1939.170 it has long been established that no payment may be made to',
10698:'one who finds lost government property unless a reward has been offered prior to the return of the property. 11',
10699:'comp. dec. 741 1905; 5 comp. dec. 37 1898; a23019, may 24, 1928; b117297o.m., feb. 12, 1954. to offer a',
10700:'reward for the recovery of lost or missing property, an agency needs some statutory basis. examples are 10 u.s.c. §',
10701:'2252 defense, military departments and 14 u.s.c. § 643 coast guard. while the degree of explicitness required has not been',
10702:'definitively addressed, the rules appear to be the same as in the case of rewards for information discussed above. two',
10703:'early decisions permitted the use of military “contingent expense” appropriations. in 6 comp. gen. 774 1927, gao told the army',
10704:'that it could offer a reward from its contingent expense appropriation for the recovery of stolen platinum. in b33518, apr.',
10705:'23, 1943, prior to the enactment of 10 u.s.c. § 2252, the navy wanted to use a general appropriation to',
10706:'offer rewards for locating lost aircraft. the comptroller general advised that the general appropriation could not be used since the',
10707:'reward was not essential to carrying out its purposes, but, relying on 170 the excess payment in each of these',
10708:'cases was authorized from the army’s appropriation for “contingent expenses.” while the “contingent expense” language is no longer used, the',
10709:'military departments receive similar appropriations for “emergencies and extraordinary expenses.” see 53 comp. gen. 707 1974. page 4282 gao04261sp appropriations',
10710:'law—vol. i d. contractual basis chapter 4 availability of appropriations: purpose 6 comp. gen. 774, the navy could use its',
10711:'contingent expense appropriation. in 41 comp. gen. 410 1961, the treasury department asked if the coast guard had any general',
10712:'authority beyond 14 u.s.c. § 643 to make reasonable payments to persons who found lost property. the comptroller general replied',
10713:'that he knew of none. based on these decisions, it appears that a general operating appropriation is not available to',
10714:'offer or pay rewards for the recovery of lost property. in b79173, oct. 18, 1948, the civil aeronautics administration had',
10715:'an appropriation for the temporary relief of distressed persons. the question presented was whether the appropriation was available to pay',
10716:'a reward to someone who had found a lost airplane 4 months after it disappeared. the comptroller general said no,',
10717:'because the passengers could all be presumed dead after 4 months, but expressly declined to decide whether the appropriation would',
10718:'have been available if the airplane had been found “with such promptness as to afford reasonable hope that survivors might',
10719:'be found and given relief.” the reasoning is similar to that in the information cases—the reward might have been considered',
10720:'necessary to carrying out the relief appropriation if there was a reasonable chance of survivors, but after the passage of',
10721:'several months it would be at best helpful. as with the necessary expense theory in general, “necessary” relates not to',
10722:'the importance of the object itself but to carrying out the purposes of the particular appropriation. stolen property was involved',
10723:'in 53 comp. gen. 707 1974. the air force asked if it could pay a reward, pursuant to local custom,',
10724:'to two thai police officers whose services had been instrumental in recovering a stolen road grader. based on 6 comp.',
10725:'gen. 774, the comptroller general held that the air force could pay the reward from its appropriation for emergencies and',
10726:'extraordinary expenses, successor to the old contingent expense appropriation. however, apart from that particular appropriation, the decision held that there',
10727:'was no authority for the reward. this part of the decision was based on 8 comp. gen. 613 1929, once',
10728:'again implying that the rules in the information cases would apply to missing property as well. this case would now',
10729:'be covered by 10 u.s.c. § 2252. the basis of the right to a reward is contractual; that is, there',
10730:'must be an offer and an acceptance. the rationale is that “no person by his voluntary act can constitute himself',
10731:'a creditor of the government.” 20 comp. dec. 767, 769 1914. page 4283 gao04261sp appropriations law—vol. i chapter 4 availability',
10732:'of appropriations: purpose where a reward is based on the “necessary expense” theory rather than on explicit statutory authority, the',
10733:'decisions hold that there must be an offer of reward before a reward can be claimed. performance of the service',
10734:'constitutes the acceptance. see, e.g., 26 comp. gen. 605 1947; 3 comp. gen. 734 1924. see also 70 comp. gen.',
10735:'720 1991. the offer may be in the form of a “standing offer” promulgated by regulation. see, e.g., b131689, june',
10736:'7, 1957, in which a treasury decision constituted the offer for an internal revenue service irs reward. another example is',
10737:'28 c.f.r. pt. 7, a standing offer by the attorney general for rewards for the capture, or information leading to',
10738:'the capture, of escaped federal prisoners. consistent with contract theory in general, it is also possible for an offer to',
10739:'be implied from practice or course of conduct. for example, a reward was held payable to an informer under the',
10740:'prohibition laws without a specific offer in 4 comp. gen. 255 1924. the informer was a member of a “gang',
10741:'of whiskey thieves” and the comptroller general noted that “[u]nder such conditions no specific agreement for compensation is generally made,',
10742:'but with a man of such character there is, and practically must be, to obtain the information, an understanding that',
10743:'there will be compensation.” id. at 256. the course of conduct and standing offer concepts were combined in a23019, may',
10744:'24, 1928, involving a reward for finding a lost navy torpedo. in view of the prevailing understanding in the area',
10745:'and past practice, the navy’s regulations were viewed as “implicitly” making a standing offer. similarly, where a reward is based',
10746:'on express statutory authority and the statute either is discretionary or authorizes the agency to “offer and pay” a reward,',
10747:'there must be an offer before payment can be made. 41 comp. gen. 410 1961 14 u.s.c. § 643; 20',
10748:'comp. dec. 767 1914 apprehension of a deserter. on the other hand, if a statute provides for a reward as',
10749:'a matter of entitlement, the reasons for requiring an offer are less compelling; the terms of the statute and any',
10750:'implementing regulations will determine precisely how and when the “contract” comes into existence. e.g., merrick v. united states, 846 f.2d',
10751:'725 fed. cir. 1988, discussed above in section c.14.a in connection with the internal revenue service statute. as to whether',
10752:'the claimant must have knowledge of the offer, the decisions are not entirely consistent. cases involving the apprehension of deserters',
10753:'have held that performance of the service gives rise to an obligation on the part of the government to pay',
10754:'the offered reward notwithstanding the claimant’s lack of knowledge of the offer when he performed the service. 27 comp. dec.',
10755:'47 1920; 20 comp. dec. 767 1914; b41659, may 26, 1944. on the other hand, cases involving the finding of',
10756:'lost property have held page 4284 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose that knowledge is required.',
10757:'thus, in 26 comp. gen. 605 1947, a reward the navy had offered for the discovery of a lost airplane',
10758:'was denied where the person discovering the airplane had no knowledge of the offer at the time he performed the',
10759:'service. this ruling was followed in 41 comp. gen. 410 1961, holding that the coast guard could not pay a',
10760:'reward under 14 u.s.c. § 643 to one who had no knowledge of the published offer. see also a35247, apr.',
10761:'1, 1931 escaped prisoner. the latter group of decisions purports to be based on the “great weight of authority.” 26',
10762:'comp. gen. at 606. since reward payments for information furnished to the government are in the nature of compensation for',
10763:'services rendered rather than personal gratuities, the right to file a claim for the reward vests at the time the',
10764:'compensation is earned i.e., the services performed. consequently, that right is not defeated where the informant dies prior to filing',
10765:'a claim or receiving the reward. the issue was discussed in 5 comp. gen. 665 1926, in which gao approved',
10766:'the payment of a reward to the legal representative of an informant’s estate for information furnished under the predecessor of',
10767:'19 u.s.c. § 1619, even though the informant had not filed a claim prior to his death. see also 2',
10768:'comp. dec. 514 1896 customs; b131689, june 7, 1957 internal revenue; b129886o.m., dec. 28, 1956 internal revenue. e. rewards to',
10769:'government employees a reward may not be paid to a government employee for services rendered within the scope of his',
10770:'or her official duties. for example, in 4 comp. gen. 687 1925, a deputy united states marshal claimed a reward',
10771:'for apprehending a military deserter. the comptroller general held that the reward could not be paid since the marshal had',
10772:'been acting in his official capacity i.e., doing his job rather than his personal capacity. see also 7 comp. gen.',
10773:'307 1927; a35247, apr. 1, 1931; a17808, mar. 30, 1927. under the defense department’s statutory authority to pay expenses plus',
10774:'a small reward, a federal employee may be reimbursed actual expenses incurred, but may not be paid the reward. 32',
10775:'comp. gen. 219 1952. in addition, some statutes, 19 u.s.c. § 1619 for one example, expressly exclude government employees from',
10776:'eligibility. however, if an employee performs services beyond the scope of his official duties for which a reward has been',
10777:'offered, the reward may be paid since the employee was acting in his capacity as a private citizen. thus, a',
10778:'reward was held payable to a patrol inspector for the immigration service who had apprehended a military deserter since the',
10779:'action was outside the scope of his official duties. 5 comp. gen. 447 1925. see also a17066, mar. 2, 1927.',
10780:'page 4285 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose the prohibition against an employee’s receiving a reward',
10781:'for services performed in the course of his official duties applies as well to rewards offered by nongovernment sources. the',
10782:'principle is illustrated in 49 comp. gen. 819 1970. an air force major, flying a lowlevel training mission in the',
10783:'republic of colombia, spotted a cargo plane unloading in a suspicious location. he notified the colombian authorities, who seized what',
10784:'turned out to be a load of contraband. under colombian law, the informant was entitled to a reward of 25',
10785:'percent of the total value of the contraband. however, any earnings of an employee in excess of his regular compensation,',
10786:'earned in the course of performing his official duties, belong to the government. therefore, the major could not keep the',
10787:'reward but had to turn it in for deposit in the treasury. another reason the major could not keep the',
10788:'reward is the prohibition in the united states constitution art. i, § 9, cl. 8 against the acceptance by a',
10789:'government officer or employee of gifts or emoluments from a foreign government without the consent of congress. 15. state and',
10790:'local taxes a. introduction the doctrine of sovereign immunity and the supremacy clause of the constitution u.s. const. art. vi,',
10791:'cl. 2 prohibit states from taxing the federal government or its activities. mcculloch v. maryland, 17 u.s. 4 wheat. 316',
10792:'1819. the supreme court’s early interpretation was aimed at the preservation of the federal system, which includes chief justice marshall’s',
10793:'famous dictum in mcculloch that “the power to tax involves the power to destroy.” 17 u.s. at 431. since chief',
10794:'justice marshall’s time, federal activity and state taxing schemes have grown in complexity and sophistication. today, while the basic rule',
10795:'of federal immunity from state and local taxation is easy to state, it is far less easy to apply. in',
10796:'the words of the supreme court, federal immunity from state and local taxation is a “much litigated and often confused',
10797:'field.” united states v. city of detroit, 355 u.s. 466, 473 1958. it “has been marked from the beginning by',
10798:'inconsistent decisions and excessively delicate distinctions” united states v. new mexico, 455 u.s. 720, 730 1982, with the line between',
10799:'taxability and immunity “drawn by an unsteady hand” united states v. allegheny county, 322 u.s. 174, 176 1944. page 4286',
10800:'gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose in the simplest situation, federal tax immunity applies to attempts',
10801:'to tax directly the property or activities of a federal department or agency. more difficult problems arise when the entity',
10802:'being taxed is not a typical federal agency. the test enunciated by the supreme court on whether federal immunity from',
10803:'taxation applies is whether the entity is “so closely connected to the [federal] government that the two cannot realistically be',
10804:'viewed as separate entities, at least insofar as the activity being taxed is concerned.” united states v. new mexico, 455',
10805:'u.s. at 735. the most common situation calling for the application of this test—the taxation of government contractors—will be discussed',
10806:'later. the government’s constitutional immunity from state taxation has been held to extend to federal credit unions. united states v.',
10807:'michigan, 851 f.2d 803 6th cir. 1988. however, a municipal sales tax imposed on a “village corporation” established under the',
10808:'alaska native claims settlement act and funded in part by federal funds is not a tax on the united states',
10809:'since the village corporation is not a federal agency and the funds, once distributed to the corporation, are essentially private',
10810:'funds. b205150, jan. 27, 1982. similarly, funds paid over to a grantee under a federal grant program may be used',
10811:'to pay a nondiscriminatory state sales tax on purchases made with grant funds. 37 comp. gen. 85 1957. the reason',
10812:'is that the funds, once paid to the grantee, are no longer federal funds subject to many of the restrictions',
10813:'on the direct expenditure of appropriations. id. at 86–87. see also 62 comp. gen. 531, 533 1983 grant funds become',
10814:'funds of grantees subject only to grant terms and applicable regulations.171 in 46 comp. gen. 363 1966, the comptroller general',
10815:'considered a program where the united states was to share the cost of materials and services procured by farmers to',
10816:'carry out a conservation program. the department of agriculture had proposed a procedure whereby the united states would make its',
10817:'costsharing payments directly to the vendors. since the materials purchased would not become the property of the united states, the',
10818:'procedure was viewed as essentially a “credit device” provided to the farmers, and the comptroller general concluded that the payments',
10819:'could include state sales taxes. 171 the same result would apply to purchases by a contractor under a contract with',
10820:'a grantee financed from federal grant funds b177215, nov. 30, 1972, and to state or local taxation of the income',
10821:'of a grantee’s employees 14 comp. gen. 869 1935. note that appropriations for national guard operations, however, are not grants',
10822:'to the states so that the federal government’s immunity from taxation applies. 42 comp. gen. 631 1963. page 4287 gao04261sp',
10823:'appropriations law—vol. i chapter 4 availability of appropriations: purpose evidence of taxexempt status because of the federal government’s immunity may',
10824:'take various forms, depending on the circumstances. for example, use of a government credit card or purchase order identifies the',
10825:'purchaser as an agent, agency, or instrumentality of the united states.172 other forms are listed in the federal acquisition regulation',
10826:'far, 48 c.f.r. § 29.305. when other evidence is not available or is inapplicable, immunity is often established by use',
10827:'of a “tax exemption certificate” such as standard form 1094, which is usually processed individually. it is prescribed by and',
10828:'illustrated in the far. 48 c.f.r. §§ 29.302b, 53.229, 53.301–1094.173 in some jurisdictions, tax exemption can be established by reciting',
10829:'a “taxexempt number” obtained from the taxing authority. where this procedure exists, it is governed by state regulation. where available,',
10830:'this can be a simple and costeffective way of invoking the government’s tax immunity in situations where the amounts involved',
10831:'do not justify obtaining a tax exemption certificate see b206804, feb. 7, 1983. state taxation problems center on two distinct',
10832:'types of taxing schemes: taxes linked to business transactions involving the federal government, typically sales and use taxes, and propertyoriented',
10833:'taxes linked to ownership or use of various types of real and personal property located within a state’s geographical boundaries.',
10834:'in addition, federal government employees frequently incur various types of state and local taxes while performing government business. these three',
10835:'broad categories form the framework of our discussion. 172 the use of a government travel or purchase card does not',
10836:'necessarily demonstrate that the purchase was for the federal government, however. see, e.g., u.s. general accounting office, travel cards: control',
10837:'weaknesses leave navy vulnerable to fraud and abuse, gao03147 washington, d.c.: dec. 23, 2002 reporting government travel card use for',
10838:'legalized brothels, gentlemen’s clubs, cruise lines, and other inappropriate transactions. 173 the far also provides that when economically feasible agencies',
10839:'should take maximum advantage of all exemptions from state and local taxation. 48 c.f.r. § 29.302b. this provision does not',
10840:'imply that small taxes should automatically be paid without asserting the government’s immunity, but instead suggests that taxes in small',
10841:'amounts should be paid regardless of the government’s immunity where no other evidence is available and where a tax exemption',
10842:'certificate would otherwise be required to take advantage of the immunity. the use of blanket and multiple exemption certificates is',
10843:'discussed in 41 comp. gen. 560 1962. page 4288 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose b.',
10844:'tax on business transactions where the federal government is a party 1 general principles the key question in determining whether',
10845:'the federal government may pay a sales or other tax imposed on its purchase of goods or services within a',
10846:'state depends, according to the supreme court in alabama v. king & boozer, 314 u.s. 1 1941, on where the',
10847:'legal incidence of the tax falls. there, a construction contractor building a federal project objected to the state’s imposition of',
10848:'sales tax on its purchase of building materials used in construction. it argued that such purchases should be exempt from',
10849:'state taxation, as the costs would ultimately be borne by the federal government and thereby violate federal immunity from state',
10850:'taxation. the supreme court disagreed, drawing a distinction between the economic burden imposed on the united states when it must',
10851:'pay more for goods and services because of sales taxes levied against the seller of goods, and the constitutionally impermissible',
10852:'burden occurring when the government, as a purchaser of goods, is directly liable to the state for taxes imposed on',
10853:'a transaction. in other words, if the “legal incidence” of a tax falls on the vendorseller and the seller alone',
10854:'is obligated to pay, the government may reimburse the seller for the total cost, including any tax.174 but if the',
10855:'vendeebuyer is in any way legally responsible for the payment of the tax, the federal government as a buyer cannot',
10856:'be required to pay. id. at 12–14. see james v. dravo contracting co., 302 u.s. 134 1937 state gross receipts',
10857:'tax imposed on a government contractor.175 the rule that the government is constitutionally immune from a “vendee tax” but may',
10858:'pay a valid “vendor tax”—even if the government ultimately bears its economic burden—has been recognized and applied in numerous comptroller',
10859:'general decisions. e.g., 46 comp. gen. 363 1966; 24 comp. gen. 150 1944; 23 comp. gen. 957 1944; 21 comp.',
10860:'gen. 1119 1942; 21 comp. gen. 733 1942. the same rule applies to state tax levies on 174 of course,',
10861:'“no matter on whom the tax nominally falls, the market price including the tax and the quantity sold will be',
10862:'the same. accordingly, the economic incidence will be shared in the same way: if the tax is nominally on the',
10863:'buyer, part of it will be passed back to the seller in the form of reduced quantity demanded.” united states',
10864:'v. delaware, 958 f.2d 555, 561 n.11 3rd cir. 1992. that the imposition of a particular fee may ultimately burden',
10865:'the unites states financially is an insufficient ground to invalidate a tax. united states postal service v. town of greenwich,',
10866:'901 f. supp. 500, 507 d. conn. 1995. 175 in the context of sales taxes, the hallmark of a vendor',
10867:'tax is that the law establishing the tax requires the seller to pay it notwithstanding any inability or unwillingness on',
10868:'the part of the seller to collect it from the purchaser. e.g., b239608, dec. 14, 1990 nondecision letter; b225123, may',
10869:'1, 1987 nondecision letter. page 4289 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose rental fees. see 49',
10870:'comp. gen. 204 1969; b168593, jan. 13, 1971; b170899, nov. 16, 1970. determining whether the legal incidence of a particular',
10871:'tax is on the vendor or the vendee is a question of federal law, e.g., united states v. nevada tax',
10872:'commission, 439 f.2d 435, 439 9th cir. 1971, and gao will follow federal judicial precedent where available. if there are',
10873:'no federal judicial decisions on point, gao will follow the determination of the states highest court. 21 comp. gen. 843',
10874:'1942; b211093, may 10, 1983. nowhere is the vendor/vendee concept more clearly illustrated than in the many cases considered by',
10875:'gao on the payment of state gasoline taxes. in 57 comp. gen. 59 1977, the comptroller general held that the',
10876:'vermont tax on gasoline distributors, which was required by law to be passed along to dealers and in turn to',
10877:'consumers, was a legal obligation on consumers to pay the tax. since this tax collection mechanism constituted a vendee tax,',
10878:'the federal government was constitutionally immune from its payment as a purchaser. in 1979, vermont amended its tax law to',
10879:'delete the requirement for passthrough to dealers and consumers. with this amendment, the tax became a vendor tax and the',
10880:'federal government’s immunity no longer applied. 63 comp. gen. 49 1983. it remains immaterial that, as a practical matter, the',
10881:'tax will be reflected in the retail price of the fuel. while the economic incidence still fell on the federal',
10882:'government as purchaser, the legal incidence no longer did. another example of a vendee tax for which the united states',
10883:'was immune was the california state gasoline tax, which the dealer was required to collect from a consumer “insofar as',
10884:'it can be done.” 55 comp. gen. 1358 1976. gao’s finding that this was a vendee tax drew support from',
10885:'diamond national corp. v. state board of equalization, 425 u.s. 268 1976, where the supreme court concluded that an identically',
10886:'worded sales tax requirement was imposed on the vendee. in 55 comp. gen. 1358, gao also considered gasoline taxes in',
10887:'pennsylvania, hawaii, and new mexico. pennsylvania’s tax was an excise tax on dealerusers meaning retail service station operators. the statute',
10888:'did not provide any mechanism for the dealeruser to seek reimbursement from the consumer and therefore it was assumed that',
10889:'the tax levied against the dealeruser would become a part of that retailer’s operating expenses. accordingly, the federal government could',
10890:'pay, as a part of the purchase price, the amount of tax on the retailer who was statutorily required to',
10891:'assume that tax as a cost of doing business. in hawaii the tax was in the page 4290 gao04261sp appropriations',
10892:'law—vol. i chapter 4 availability of appropriations: purpose form of a license fee paid by retail distributors of gasoline. this',
10893:'license fee was imposed directly on the distributors with no direct recourse against the consumers of gasoline, although the amount',
10894:'of the license fee was undoubtedly considered in setting the basic cost of fuel sold by those retailers. for this',
10895:'reason the federal government was authorized to pay the full retail price, including any amount attributable to the tax.176 the',
10896:'new mexico gasoline tax, however, was a tax on the users of state highways, collected by the retail dealer of',
10897:'gasoline. the tax was added at the pump to the pergallon cost of gasoline. since the incidence of this tax',
10898:'was on the vendee, when the united states purchased fuel in new mexico, it was exempt from the tax.177 a',
10899:'type of vendor tax that the federal government must nearly always pay is a business privilege or gross receipts tax,',
10900:'a personal tax on domestic and foreign concerns for the privilege of doing business in the state commonly measured as',
10901:'a percentage of gross receipts. an example of this kind of tax is the illinois retailers’ occupational tax discussed in',
10902:'43 comp. gen. 721 1964, 42 comp. gen. 517 1963, and b162452, oct. 6, 1967. similar taxes have been held',
10903:'to be payable in the states of arizona 27 comp. gen. 767 1948 and b167150, feb. 17, 1970; hawaii 49',
10904:'comp. gen. 204 1969 and 37 comp. gen. 772 1958; new mexico b147615, dec. 14, 1961; and south dakota b211093,',
10905:'may 10, 1983. a “business privilege” tax on motor fuel sellers imposed by kansas city, missouri, was held payable in',
10906:'32 comp. gen. 423 1953. the imposition of state taxes—sales, use, gross receipts, etc.—on federal government contractors has produced more',
10907:'than its share of litigation. questions arise, for example, because the tax may be based on the value of property',
10908:'in the contractor’s possession but owned by the federal government, or purchased for use in performing the contract. for the',
10909:'most part, the taxes will be upheld. the most comprehensive discussion by the 176 in 28 comp. gen. 706 1949,',
10910:'a washington state tax on gasoline distributors was similarly found to be a vendor tax and the united states was',
10911:'therefore required to pay the amount added to the purchase price of gasoline to represent the tax. see also b154266,',
10912:'june 25, 1964, considering the same tax as applied to governmentrented commercial vehicles. 177 in the 1960s, california law provided',
10913:'for a refund of the tax paid on gasoline for vehicles operated entirely off state highways. the state courts had',
10914:'found that the term “highway” did not encompass roads running in and through national parks. therefore, relying on the state’s',
10915:'interpretation of its own statute, gao concluded that no tax was payable on gasoline used in vehicles driven only on',
10916:'the grounds of a national monument. 42 comp. gen. 593 1963. page 4291 gao04261sp appropriations law—vol. i chapter 4 availability',
10917:'of appropriations: purpose supreme court is united states v. new mexico, 455 u.s. 720 1982. the court reviewed prior cases',
10918:'and concluded: “[t]ax immunity is appropriate in only one circumstance: when the levy falls on the united states itself, or',
10919:'on an agency or instrumentality so closely connected to the government that the two cannot realistically be viewed as separate',
10920:'entities, at least insofar as the activity being taxed is concerned.” id. at 735. government contractors will generally be unable',
10921:'to meet this test except in very limited circumstances. thus, a contractor can claim constitutional immunity from tax where there',
10922:'is an agency relationship between the united states and a contractor such that the contractor is acting solely as the',
10923:'government’s purchasing agent and title to goods purchased never vests in the contractor. kernlimerick v. scurlock, 347 u.s. 110, 120–23',
10924:'1954; united states v. lohman, 74 f.3d 863, 867 8th cir., cert. denied, 518 u.s. 1018 1996; b177215, nov. 30,',
10925:'1972. see also united states v. kabeiseman, 970 f.2d 739 10th cir. 1992 united states and not contractor was the',
10926:'real purchaser of diesel fuel, so state tax levied on the diesel fuel purchasers could not be enforced against the',
10927:'united states. however, the “contractor as agent” has limited application. for example, in united states v. new mexico, 455 u.s.',
10928:'720, 742 1982, the court sustained use and gross receipts taxes imposed on government contractors which, in that case, operated',
10929:'under an “advance funding” system whereby the contractors met their obligations by using treasury funds that had been placed in',
10930:'a special bank account. id. at 725–26.178 in imposing taxes on government contractors, a state may not discriminate against the',
10931:'federal government south carolina v. baker, 485 u.s. 505, 523 1988; see, e.g., b156561, june 22, 1965, or substantially interfere',
10932:'with its activities. new mexico, 455 u.s. at 735 n.11; phillips chemical co. v. dumas independent school district, 361 u.s.',
10933:'376, 387 1960; city of detroit v. murray corp., 355 u.s. 489, 495 1958; united states v. city of manassas,',
10934:'830 f.2d 530, 533 4th cir. 1987, aff’d mem., 485 u.s. 1017 178some additional supreme court cases sustaining the imposition',
10935:'of state taxes on government contractors in various contexts include washington v. united states, 460 u.s. 536 1983; united states',
10936:'v. boyd, 378 u.s. 39 1964; city of detroit v. murray corp., 355 u.s. 489 1958; alabama v. king &',
10937:'boozer, 314 u.s. 1 1941; james v. dravo contracting co., 302 u.s. 134 1937. dravo is regarded as starting the',
10938:'current trend. new mexico, 455 u.s. at 731–32. page 4292 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose',
10939:'1988. this does not prevent states from taxing private parties who use federal property, even when the private parties are',
10940:'providing goods to the united states. united states v. nye county, 178 f.3d 1080, 1084 9th cir. 1999. the united',
10941:'states can be required to pay a state tax obligation imposed on its contractor when the federal government assumes responsibility',
10942:'for the tax by contract. united states v. department of revenue of state of illinois, 202 f. supp. 757, 760',
10943:'n.d. ill., aff’d per curiam, 371 u.s. 21 1962. the typical language in government contracts for the purchase of goods',
10944:'or services recites that the offered price includes all applicable state and local taxes. see the federal acquisition regulation far',
10945:'provisions on state and local taxes at 48 c.f.r. subpt. 29.3, and its prescribed contract clauses at 48 c.f.r. §',
10946:'52.229. shifting the burden of determining which taxes apply to the contractor is premised on the belief that contractors are',
10947:'in a better position to know what taxes are applicable. b251628, apr. 2, 1993; b242303, mar. 21, 1991; b209430, jan.',
10948:'25, 1983. unless otherwise specified in the contract, the government cannot be required to pay any additional amount for taxes',
10949:'b162667, dec. 19, 1967; b134347, mar. 1, 1966, even when the taxes were first imposed during contract performance. b160129, dec.',
10950:'7, 1966. in such circumstances it is irrelevant that the tax involved is a valid vendor tax from which the',
10951:'united states is not immune; there can be no liability unless the contract so provides. 45 comp. gen. 192 1965;',
10952:'23 comp. gen. 957 1944. note however, that a contract can include a contingency clause for afterimposed state and local',
10953:'taxes. the failure to include such a clause is regarded as the contractors business decision so that the government will',
10954:'not be liable for any additional taxes. cannon structures, inc., icba no. 396898, 991 b.c.a. ¶ 30,236 1999; midcon of',
10955:'new mexico, inc., asbca no. 37249, 901 b.c.a. ¶ 22,621 1990. other contract language, of course, may dictate different results.',
10956:'a contract that provides for the payment of “the actual direct costs” includes reimbursement of state taxes paid by a',
10957:'contractor. 72 comp. gen. 107 1993. similarly, a contract for the “actual costs” justifies reimbursement to a contractor of back',
10958:'taxes and interest assessed against him when a court found that the contractor was not exempt from taxation. b147316o. m.,',
10959:'jan. 9, 1962. the same result would apply in the case of a contract for a cost plus fixed fee,',
10960:'such as the contract in alabama v. king & boozer, supra. 35 comp. gen. 378 1955. likewise, a contract to',
10961:'pay 50 percent of any new tax imposed by a state would include the obligation to pay half of page',
10962:'4293 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose the business privilege tax assessed against a corporate contractor.',
10963:'b152325, dec. 12, 1963. a contractor may be entitled to equitable relief in certain limited circumstances where both the contractor',
10964:'and the government are mistaken as to the applicability of a state tax to a particular contract and where the',
10965:'contractor reasonably relies on an innocent representation of a government agent that no tax applies. in such cases, the contract',
10966:'may be reformed and the price increased to include the applicable state tax. cases reaching this result in various fact',
10967:'situations include 64 comp. gen. 718 1985; b186949, oct. 20, 1976; b180071, feb. 25, 1974; b169959, aug. 3, 1970; b159064,',
10968:'may 11, 1966; and b153472, dec. 2, 1965. the underlying legal principle is to avoid unjust enrichment so that a',
10969:'party making a misrepresentation, however innocently, should not benefit at the expense of a party who reasonably relies on that',
10970:'misrepresentation. mutual mistake is an essential element of recovery in these cases. if the contractor cannot establish mutual mistake, the',
10971:'contract is payable as written and the contractor must absorb the additional expense. e.g., hugh s. ferguson co., psbca no.',
10972:'2178, 891 b.c.a. ¶ 21,294 1988 distinguishing 64 comp. gen. 718; see foley co. v. united states, 36 fed. cl.',
10973:'788, 792 1996 agency employee’s misrepresentation about taxexempt status is not a mutual mistake of fact requiring contract reformation; see',
10974:'also cannon structures, inc., supra at 991 b.c.a. ¶ 30,236 far prohibits post contractual relief for afterimposed state taxes. if',
10975:'a contractor entitled under the contract to be reimbursed for state taxes pays a state tax that is later judicially',
10976:'determined to be invalid, the contractor is nevertheless entitled to reimbursement 43 comp. gen. 721 1964, unless the contractor paid',
10977:'the tax without being required to do so 38 comp. gen. 624 1959. throughout the preceding discussion, the government has',
10978:'been the buyer. tax problems may also arise where the government is the seller, although there have been few decisions',
10979:'in this area. in one case, the texas use tax statute required sellers to obtain a permit, collect the tax,',
10980:'and remit collections to the state comptroller. the comptroller general held that the state could not impose these requirements on',
10981:'the disposal of surplus federal property by the general services administration under the federal property and administrative services act of',
10982:'1949. 41 comp. gen. 668 1962. the theory is that a state may not infringe on the right of the',
10983:'federal government to conduct its official activities free from state control or regulation. see mayo v. united states, 319 u.s.',
10984:'441, 447 1943 ruling that page 4294 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose imposition of state',
10985:'“inspection fees” on federal property interfered with federal functions in violation of the supremacy clause, u.s. const. art. vi, cl.',
10986:'2. 2 public utilities as with any other occupant of a building, the federal government is a consumer of services',
10987:'from public utilities. a utility bill may include various elements in addition to the basic charge for services used. some',
10988:'of these elements may be taxes the federal government may properly pay; others may be taxes from which the government',
10989:'is immune; still others may not be taxes at all. in determining whether appropriated funds may be used to pay',
10990:'taxes appearing on or included in utility bills, the principles described above apply—such as the distinction between a vendor and',
10991:'vendee tax—with one additional feature based on the nature of the ratefixing process. utility rates are usually set by the',
10992:'state legislature or by a public service commission. rates established through this process apply to federal and nonfederal users alike.',
10993:'unless they are unreasonable or discriminatory, federal agencies are expected to pay them. e.g., 67 comp. gen. 220 1988; 27',
10994:'comp. gen. 580 1948. see also b300538, mar. 24, 2003 appropriated funds may be used to pay the costs of',
10995:'relocating public utility facilities on federal lands when the government—acting as a customer—requests that the facility be moved. for example,',
10996:'state sales taxes that qualify as vendor taxes and that have been factored into the utility rates through the applicable',
10997:'ratesetting process are payable by the government. 45 comp. gen. 192 1965; b300538, supra; b134602, dec. 26, 1957; b123206, june',
10998:'30, 1955. the same result applies with respect to a vendor sales tax on the utility billed separately to the',
10999:'agency. b211093, may 10, 1983. business privilege or gross receipts taxes are frequently imposed on public utilities by law. the',
11000:'utility companies are permitted to treat these taxes as operating expenses and to incorporate them into their basic billing rates,',
11001:'thereby creating a constitutionally permissible vendor tax. b300538, supra; b144504, june 9, 1967; b148667, may 15, 1962. this is true',
11002:'even where a state utility regulatory authority requires the passthrough, if the tax itself is a vendor tax. see 61',
11003:'comp. gen. 257 1982 veterans administration medical centers were liable for that portion of their electric page 4295 gao04261sp appropriations',
11004:'law—vol. i chapter 4 availability of appropriations: purpose bills which were attributable to a rate increase reflecting the states public',
11005:'utility license tax.179 where the business privilege tax is a valid vendor tax, it can be paid even if it',
11006:'is attributed as a tax and stated on the utility bill as a separate item. 32 comp. gen. 577 1953;',
11007:'b300538, supra; b260063, june 30, 1995; b171756, feb. 22, 1971; b144504, june 30, 1970; b225123, may 1, 1987 nondecision letter.180',
11008:'the theory is that the “tax,” even though separately stated, is, in effect, an authorized rate increase designed to recover',
11009:'the revenue necessary to permit the utility to maintain the allowed rate of return on its investment. see b167999, dec.',
11010:'31, 1969. see also b288161, apr. 8, 2002 vendees do not bear the legal incidence of a utility tax even',
11011:'when a utility increases its rates to pass the tax on to the vendee. however, payment may not be approved',
11012:'where the tax is collected only from the federal government or where the collection of the tax would have a',
11013:'discriminatory effect on federal activities. b159685, apr. 7, 1967. another charge occasionally encountered is a “lifeline” surcharge. this is a',
11014:'surcharge designed to subsidize the providing of reduced cost utility service to lowincome or elderly customers. gao regards a lifeline',
11015:'surcharge not as a tax, but merely part of the authorized rate properly payable by federal users. 67 comp. gen.',
11016:'220 1988; b189149, sept. 7, 1977. c. propertyrelated taxes federal land located within state borders is also exempt from state',
11017:'property taxes on the same constitutional theory discussed above. e.g., clallam county v. united states, 263 u.s. 341, 343–44 1923;',
11018:'van brocklin v. tennessee, 117 u.s. 151, 180 1886. however, as with the contractor cases previously discussed, the immunity is',
11019:'generally limited to attempts to levy the tax directly against the federal government. thus, the supreme court has sustained a',
11020:'state property tax on federally owned land leased to a private party for the conduct of forprofit activities united states',
11021:'v. city of detroit, 355 u.s. 466, 469 1958, and on the “possessory interest” of forest service employees living in',
11022:'governmentowned housing 179 the department of justice considered the same situation with the same result. 6 op. off. legal counsel',
11023:'273 1982. 180 another type of “tax” appearing on utility bills is a charge for 911 emergency service. see b300737,',
11024:'june 27, 2003; b253695, july 28, 1993; and the discussion in section c.7.c of this chapter. page 4296 gao04261sp appropriations',
11025:'law—vol. i chapter 4 availability of appropriations: purpose united states v. county of fresno, 429 u.s. 452 1977.181 similarly, the',
11026:'court of federal claims in wright runstad properties ltd. partnership v. united states, 40 fed. cl. 820, 824 1998, ruled',
11027:'that a landlord to the federal government had to pay a special assessment levied against the property, observing that the',
11028:'government’s tax immunity was not implicated because the government was not being taxed. just as states and their political subdivisions',
11029:'are barred from levying general property taxes against federal property, they are likewise prevented from making assessments against federal land',
11030:'for local improvements, even if the improvements would be made to federally owned property. b157435, oct. 6, 1965. such assessments',
11031:'are typically made for paving or repairing streets or sidewalks, installing sewers, and similar local governmental services. an assessment for',
11032:'local improvements is an involuntary exaction in the nature of a tax. hagar v. reclamation district no. 108, 111 u.s.',
11033:'701, 707 1884; city of cincinnati v. united states, 39 fed. cl. 271, 275 1997, aff’d, 153 f.3d 1375 fed.',
11034:'cir. 1998. as such, the decisions have uniformly held that the united states is not required to pay. e.g., united',
11035:'states v. city of huntington, 999 f.2d 71 4th cir. 1993, cert. denied, 510 u.s. 1109 1994; national railroad passenger',
11036:'corp. v. pennsylvania public utility commission, 665 f. supp. 402 e.d. pa. 1987, aff’d, 848 f.2d 436 3rd cir., cert.',
11037:'denied, 488 u.s. 893 1988;182 united states v. harford county, 572 f. supp. 239 d. md. 1983; 27 comp. gen.',
11038:'20 1947; 18 comp. gen. 562 1938; b243004, sept. 5, 1991; b226503, sept. 24, 1987; b184146, aug. 20, 1975; b160936,',
11039:'mar. 13, 1967; b155274, oct. 7, 1964; b150207, nov. 8, 1962. any assessment based on a fixed dollar amount multiplied',
11040:'by the number of front feet of the government’s property, or computed on a square footage 181 a tax lien',
11041:'that attaches to property before title passes to the government is not a tax on government property. the lien is',
11042:'a valid encumbrance against the property, although it is unenforceable as long as the government holds the property. united states',
11043:'v. alabama, 313 u.s. 274 1941. see united states v. lewis county, 175 f.3d 671, 678 9th cir., cert. denied,',
11044:'528 u.s. 1018 1999 foreclosure against federally owned property impossible without consent of the united states. in a series of',
11045:'early decisions, however, gao advised that the acquiring agency could use its appropriations to extinguish the lien if administratively determined',
11046:'to be in the best interests of the government, for example, to clear title prior to disposition of the property.',
11047:'b40548, jan. 26, 1945; b41677, may 8, 1944; b28443, dec. 9, 1943; b21817, feb. 12, 1942. 182 amtrak’s status as',
11048:'an instrumentality of the united states for this purpose was irrelevant because amtrak’s enabling legislation specifically provides for tax immunity.',
11049:'e.g., pennsylvania public utility commission, 665 f. supp. at 411; 49 u.s.c. § 24301. page 4297 gao04261sp appropriations law—vol. i',
11050:'chapter 4 availability of appropriations: purpose basis, is a tax and not payable by the government. e.g., harford county, supra;',
11051:'b168287, feb. 12, 1970; b159084, may 11, 1966. naturally, the determination of whether a particular assessment can be paid does',
11052:'not depend on the taxing authority’s characterization of the assessment. thus, payment has been denied where the assessment was termed',
11053:'a “benefit assessment” b168287, nov. 9, 1970, a “systems development charge” b183094, may 27, 1975, or an “invoice for services”',
11054:'49 comp. gen. 72 1969. regardless of the designation, if the charge is computed on a footage basis or in',
11055:'the same manner as the taxes levied against other property owners, it cannot be paid. however, even though an assessment',
11056:'may not be paid as a tax, a state or municipality may be compensated on a quantum meruit basis for',
11057:'the fair and reasonable value of the services actually received by the united states. harford county, supra; 49 comp. gen.',
11058:'72 1969; 18 comp. gen. 562 1938; b226503, sept. 24, 1987; b168287, nov. 9, 1970; see 70 comp. gen. 687',
11059:'1991 federal government may pay reasonable user fees to a county for use of its landfill. to be paid on',
11060:'a quantum meruit basis, it must be clear that the government could have acquired the services it received in a',
11061:'normal procurement, that the federal government received and accepted the benefit of the services provided, the persons seeking payment acted',
11062:'in good faith, and the amount claimed represents the reasonable value of the benefit received. 64 comp. gen. 727, 728',
11063:'1985. not surprisingly, most of gao’s decisions in this area involve an evaluation of the reasonableness of the claim. the',
11064:'method for computing the assessment is the primary means of determining whether the charge represents the fair value of services',
11065:'received. quantum meruit claimants must show how they arrived at the amount claimed: an unsupported statement that the sum represents',
11066:'the fair and reasonable value of the services rendered is insufficient. although the claim need not be presented on a',
11067:'strict “quantity of use” basis, only when it is clearly shown that the specified method of computation is based purely',
11068:'upon the value of the particular services rendered to the government may any payment be made. b177325, nov. 27, 1972;',
11069:'b168287o.m., july 28, 1972; b168287o.m., mar. 29, 1971. however, where a precise determination of the benefit received by the government',
11070:'cannot reasonably be made, payment has been allowed where the method of computation used did not appear unreasonable under the',
11071:'circumstances. b168287o.m., supra. page 4298 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose applying the above principles, the',
11072:'comptroller general concluded in one case that a special assessment based on the federal property’s ratable share of the cost',
11073:'of necessary repairs and improvements to a septic sewage system could be paid on a quantum meruit basis. b177325, nov.',
11074:'27, 1972. however, in b179618, nov. 13, 1973, an assessment against an air force base for maintenance of a drainage',
11075:'ditch based on the “benefit” to the land could not be paid since there was no indication of how the',
11076:'amount of the benefit had been computed and no showing that the assessment represented the fair and reasonable value of',
11077:'the services rendered to the government. similarly, a municipal assessment based on such factors as land area, structure value, and',
11078:'size was found to be a tax and therefore not payable in b183094, may 27, 1975. using the same analysis,',
11079:'gao advised the air force in b207695, june 13, 1983, that it was not required to pay fees for well',
11080:'registration and withdrawal of groundwater, which a state had attempted to impose on the air force’s right to draw water',
11081:'from wells on federal property. there was no showing that the fees bore any relationship to any services provided to',
11082:'the government. similarly, an assessment levied against a federal facility for sewer charges unrelated to actual sewer usage could not',
11083:'be paid as a tax. b226503, sept. 24, 1987. however, fees for permits or certificates for the right to use',
11084:'stateowned water represent charges for services rendered rather than taxes and may therefore be paid. 5 comp. gen. 413 1925;',
11085:'1 comp. gen. 560 1922. and onetime connection fees for hooking up federal facilities to local sewer systems, whether new',
11086:'construction or improvements, are payable as authorized service charges. 39 comp. gen. 363 1959; 9 comp. gen. 41 1929. where',
11087:'the hookup is incident to new construction, the fee is chargeable to the construction appropriation. 19 comp. gen. 778 1940.',
11088:'the principle that a state or municipality may be paid on a quantum meruit basis for services actually rendered provides',
11089:'a justification for the payment of a “service charge” for services rendered, as distinguished from a tax. e.g., 70 comp.',
11090:'gen. 687 1991; 49 comp. gen. 72 1969. however, a local government cannot collect a service charge for services that',
11091:'the governmental unit is required by law to provide, such as police or firefighting services. e.g., b243004, sept. 5, 1991',
11092:'special assessment to finance new city fire truck in support of municipal duty to provide fire page 4299 gao04261sp appropriations',
11093:'law—vol. i chapter 4 availability of appropriations: purpose protection is a tax not payable by the united states. see also',
11094:'section c.7 of this chapter.183 where a local government finances major improvements, such as sewers, by means of issuing revenue',
11095:'bonds, and then levies a surcharge on its service charge to liquidate the bonded indebtedness, a federal user of the',
11096:'sewer service who is under a contractual obligation to pay the service charge may also pay the surcharge. 42 comp.',
11097:'gen. 653 1963. however, gao has questioned the payment of bond interest where that interest was attributable to the municipality’s',
11098:'share of initial construction costs. b180221o.m., mar. 19, 1974. the united states’ exemption from propertyrelated taxes has an obvious effect',
11099:'on some state and local jurisdictions. congress may choose to compensate local taxing authorities for the loss of income attributable',
11100:'to federal holdings of real property within a particular jurisdiction by payments in lieu of taxes. see b149803, may 15,',
11101:'1972.184 payments may also be made pursuant to specific legislation establishing a new federal enclave. see b145801, sept. 20, 1961.',
11102:'the assessments we have been discussing thus far are assessments levied by governmental entities. tax immunity would not apply to',
11103:'assessments levied by private entities, where the federal government’s liability is determined by application of traditional concepts of contract and',
11104:'property law, subject to any applicable federal statutory provisions. for example, in b210361, aug. 30, 1983, gao advised that the',
11105:'forest service was liable for assessments levied by a private homeowners’ association on a parcel the forest service had acquired',
11106:'by donation. the obligation to pay the assessments amounted to a covenant running with the land, and the united 183',
11107:'state and local jurisdictions are also prohibited from imposing “inspection fees” on the federal government, not because these fees are',
11108:'“taxes,” but because they are a prerequisite to the federal government’s execution of a government function, they interfere with the',
11109:'united states and violate the supremacy clause, u.s. const. art. vi, cl. 2. mayo v. united states, 319 u.s. 441,',
11110:'447 1943. the result would be different if a federal statute established the obligation of a federal agency to comply',
11111:'with state regulatory processes, however, including the payment of permit fees. b286951, jan. 10, 2002. 184 the most important statute',
11112:'in this area is the payments in lieu of taxes act pilt, 31 u.s.c. §§ 6901–6907, which authorizes the secretary',
11113:'of the interior to make payments, pursuant to statutory criteria, to units of local governments in which “entitlement land” is',
11114:'located. gao has issued a number of decisions and opinions construing the pilt statute. see, e.g., 65 comp. gen. 849',
11115:'1986; 58 comp. gen. 19 1978; b212145, oct. 2, 1984; b214267, aug. 28, 1984. page 4300 gao04261sp appropriations law—vol. i',
11116:'chapter 4 availability of appropriations: purpose d. taxes paid by federal employees states became contractually bound by accepting the deed',
11117:'with notice of the covenant. the principles we have discussed in the context of real property also apply to personal',
11118:'property. e.g., 27 comp. gen. 273 1947 no legal basis to pay state registration fee on governmentowned outboard motors. several',
11119:'earlier decisions applied the federal government’s immunity against state motor vehicle license plate and title registration fees. 21 comp. gen.',
11120:'769 1942; 4 comp. gen. 412 1924; 1 comp. gen. 150 1921; 15 comp. dec. 231 1908. most federal governmentowned',
11121:'vehicles today would have federal government plates. a final type of propertyrelated state tax we may mention briefly are the',
11122:'so called “death taxes.” death taxes are of two types, estate taxes and inheritance taxes. an estate tax is based',
11123:'on the value of the taxable estate in its entirety; an inheritance tax is based on the value of taxable',
11124:'property passing to a particular beneficiary. property given to the united states by testamentary disposition may be subject to a',
11125:'state inheritance tax. the supreme court has held that a state may impose an inheritance tax on property bequeathed to',
11126:'the united states, and indeed may completely prohibit testamentary gifts to the united states by its domiciliaries. united states v.',
11127:'burnison, 339 u.s. 87, 93 1950. death taxes on gifts to the united states do not involve federal immunity because',
11128:'the taxes are imposed before the property reaches the hands of the beneficiary. see also chapter 6, section e on',
11129:'donations to the federal government, which includes citations to the leading cases. there may be situations, although they should be',
11130:'uncommon, when it may be desirable to pay a state death tax from appropriated funds. in an early case, the',
11131:'comptroller of the treasury advised the smithsonian institution that it could use its appropriation for “preservation of collections” to pay',
11132:'a state inheritance tax on a legacy bequeathed to the smithsonian. 26 comp. dec. 480 1919. this type of situation',
11133:'could arise, for example, if a decedent bequeathed specific real or personal property to the united states and the estate',
11134:'contained insufficient assets to pay an applicable death tax without liquidating the property. another way the federal government sometimes pays',
11135:'a state or local tax is by the reimbursement to a federal employee who incurred the tax during the performance',
11136:'of official business or other activities. for example, a member of the armed services was entitled to reimbursement under a',
11137:'governmentsupported health insurance plan for the full amount of a page 4301 gao04261sp appropriations law—vol. i chapter 4 availability of',
11138:'appropriations: purpose doctor’s bill, including the amount that was attributable to the new mexico gross receipts tax, a valid vendor',
11139:'tax. b130520, nov. 30, 1970. see also 36 comp. gen. 681 1957 state gasoline tax; b203151, sept. 8, 1981 local',
11140:'sales tax on rental vehicle; b160040, july 13, 1976 certain intangible property taxes reimbursable as relocation expenses incident to transfer.',
11141:'some other commonly encountered situations are described below. 1 parking taxes questions here arise in two contexts: parking meter fees',
11142:'and municipal taxes on parking in parking lots or garages. the rule for parking meters on public streets is: unless',
11143:'and until there is a contrary judicial determination, appropriated funds may be used to reimburse a federal employee for street',
11144:'parking meter fees incurred while driving a governmentowned vehicle on official business, except 1 where the fee would impose an',
11145:'impermissible burden on the performance of a federal function or 2 where the particular fee has been held by a',
11146:'court to be a tax or a revenue raising measure as opposed to a traffic regulation device. 46 comp. gen.',
11147:'624 1967.185 to the extent a parking meter fee may be held to be a tax under the above rule,',
11148:'it cannot be imposed against the federal government or against the employeedriver as the government’s agent. 41 comp. gen. 328',
11149:'1961. however, even where the fee is a tax, if the car is unmarked and being used in investigative work,',
11150:'the fee can be reimbursed as a necessary cost of the investigation. 38 comp. gen. 258 1958. the two preceding',
11151:'paragraphs apply to governmentowned vehicles. a statute expressly authorizes employee reimbursement of parking fees when using a privately owned vehicle',
11152:'on official business. 5 u.s.c. § 5704; 41 comp. gen. 328. parking meter fees in a municipally owned, offstreet parking',
11153:'lot are not viewed as taxes for purposes of the rule stated in 46 comp. gen. 624. these fees may',
11154:'therefore be reimbursed whether the employee is driving a 185 several earlier decisions were overruled by 46 comp. gen. 624',
11155:'and several others were modified. the text attempts to reflect those elements of the modified decisions that remain valid. page',
11156:'4302 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose governmentowned or privately owned vehicle. 44 comp. gen. 578',
11157:'1965.186 a local tax on parking in a parking lot or garage cannot be imposed on a governmentowned vehicle on',
11158:'official business. 51 comp. gen. 367 1971. however, if the amount of the tax is so small as not to',
11159:'justify issuance of a tax exemption certificate, the employee may be reimbursed notwithstanding the government’s immunity. 52 comp. gen. 83',
11160:'1972. the rationale is that the administrative cost of asserting the immunity by using the certificate would be prohibitive for',
11161:'very small amounts. as with the parking meter fees, an employee using a privately owned vehicle on official business may',
11162:'be reimbursed under 5 u.s.c. § 5704 for local taxes levied on parking in lots or garages. 51 comp. gen.',
11163:'367 1971. to sum up the rules on parking taxes and fees: 1. privately owned vehicles on official business. employee',
11164:'may be reimbursed for meter fees either on a street or in a municipal lot, and for taxes on parking',
11165:'in a lot or garage. 2. governmentowned vehicle, metered parking. employee may be reimbursed for meter fees on a public',
11166:'street unless one of the exceptions in 46 comp. gen. 624 applies, and for meter fees in a municipal lot.',
11167:'3. governmentowned vehicle, unmetered parking. employee may be reimbursed for local taxes on parking in a lot or garage if',
11168:'the amount is too small for the issuance of a tax exemption certificate, at least where the taxing entity requires',
11169:'the certificate as evidence of taxexempt status. 2 hotel and meal taxes state and local governments frequently add one or',
11170:'more taxes to the cost of a stay at a hotel or motel. when a federal employee rents a room',
11171:'directly from the proprietor, even when on official business, the federal employee becomes personally liable for the amount of the',
11172:'rental, including associated 186 note, however, that although federal employees may be reimbursed for parking fees, they remain personally liable',
11173:'for fines incurred when the employees fail to “feed” the meter, unless the employees had no control over the situation.',
11174:'b250880, nov. 3, 1992. page 4303 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose taxes.187 since the united',
11175:'states is not a party to the transaction, the comptroller general reasoned that the tax was not levied on the',
11176:'federal government. accordingly, the employee must pay the tax and cannot assert the government’s immunity from local taxes.188 that the',
11177:'government may reimburse the employee for the full rental price, including the tax, does not transform the tax into a',
11178:'tax on the federal government. 55 comp. gen. 1278 1976; b172621o.m., aug. 10, 1976.189 if local law exempts federal employees',
11179:'from the tax, the employees should use tax exemption certificates to claim the exemption. however, if the government rents the',
11180:'rooms directly, that is, if there is a direct contractual relationship between the united states and a hotel or motel',
11181:'for the rental of rooms to federal employees or others, then the government is entitled to assert its immunity from',
11182:'local taxes. 55 comp. gen. 1278. the department of justice reached the same result in 5 op. off. legal counsel',
11183:'348 1981, opining that the office of the vice president was not required to pay local hotel taxes when reserving',
11184:'a block of rooms for an official trip.190 similar results would occur where a tax was imposed on commercial rental',
11185:'of a vehicle or any other travelrelated activity such as meals or other transportation. b167150, apr. 3, 1972. on the',
11186:'theory that the contract defines the limits of liability, however, a meal ticket good for the purchase of food up',
11187:'to a maximum dollar amount may include amounts attributable to a valid vendor tax up to the specified dollar limit.',
11188:'in the event the dollar limit was exceeded, however, the remainder of the expense would be personal, including the extra',
11189:'amounts for tax. 41 comp. gen. 719 1962. 187 federal employees are required to use credit cards issued by government',
11190:'contractors for their temporary duty travel, 41 c.f.r. § 30151.1, and are personally responsible for paying the credit card bill',
11191:'according to the cardholder agreement. see id. § 30152.24. 188 41 c.f.r. § 30111.28. 189 note that 41 c.f.r. §',
11192:'30111.27 expressly permits reimbursement of lodging taxes to federal employees as a miscellaneous travel expense. 190 the department of justice',
11193:'notes that even where an individual employee is procuring the accommodation, the government could, if it wanted to change existing',
11194:'practice, compel recognition of federal immunity. 5 op. off. legal counsel at 349 n.2. page 4304 gao04261sp appropriations law—vol. i',
11195:'chapter 4 availability of appropriations: purpose 3 tolls state and local authorities frequently charge tolls for the use of state',
11196:'owned highways, bridges, or tunnels. “a tax is a demand of sovereignty; a toll, a demand of proprietorship.” in re',
11197:'state freight tax, 82 u.s. 15 wall. 232, 278 1872. thus, it has long been established that a toll is',
11198:'not a tax, but is a charge for the use of the road, bridge, or tunnel. sands v. manistee river',
11199:'improvement co., 123 u.s. 288, 294 1887. because tolls do not raise questions of federal tax immunity, they are properly',
11200:'payable where necessarily incurred in the performance of official business. 9 comp. gen. 41, 42 1929; 4 comp. gen. 366',
11201:'1924; 24 comp. dec. 45 1917. statutory authority now exists for the reimbursement of tolls incurred by government employees on',
11202:'official travel. 5 u.s.c. § 5704d; 35 comp. gen. 92 1955. gao has also held that appropriated funds may be',
11203:'used to purchase annual toll road permits where justified by anticipated usage.191 similarly, if an employee who frequently uses a',
11204:'toll road on official business purchases an annual permit for his or her own automobile, the agency may reimburse the',
11205:'toll charges that would otherwise have been incurred, on a per trip basis, not to exceed the cost of the',
11206:'annual permit. 34 comp. gen. 556 1955. some of the early decisions held that a toll could not be paid',
11207:'if the particular highway, bridge, or tunnel was constructed with the aid of federal funds. 9 comp. gen. at 42;',
11208:'24 comp. dec. at 48. the statement in 24 comp. dec. was based on legislation that authorized federal financial assistance',
11209:'but also prohibited the charging of “tolls of all kinds.” id. at 47. the federalaid highway act includes an almost',
11210:'identical prohibition 23 u.s.c. § 301, but also authorizes tolls in certain circumstances 23 u.s.c. § 129. the editors have',
11211:'found no discussion of this issue under the modern legislation, nor have we found any guidance as to how, apart',
11212:'from the interstate highway system, a federal employee would know which roads were constructed with aid. regardless, it would seem',
11213:'prudent to apply the concept of 52 comp. gen. 83 1972, discussed above under parking taxes, in conjunction with the',
11214:'reimbursement authority of 5 u.s.c. § 5704. 191 these purchases do not violate the statutory prohibition on advance payments because,',
11215:'gao reasoned, the government did not make an advance payment but rather purchased a present right to use the thoroughfare',
11216:'in the future. 36 comp. gen. 829 1957. page 4305 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose',
11217:'4 state and local income withholding taxes in the absence of statutory authority, state or local withholding requirements would not',
11218:'apply to the federal government because a state may not “regulate” the governmental activities of the united states. 28 comp.',
11219:'gen. 101 1948; 27 comp. gen. 372 1948. the requisite statutory authority now exists. for the district of columbia and',
11220:'any other state, city, or county that provides for the collection of income tax by withholding, the secretary of the',
11221:'treasury must enter into an agreement with the applicable jurisdiction to withhold the tax from federal employees. 5 u.s.c. §§',
11222:'5516, 5517, 5520. 5 possessory interest taxes a possessory interest tax is a tax on the exclusive right to the',
11223:'beneficial use of real property or its improvements held by a taxexempt public agency. see united states v. county of',
11224:'san diego, 965 f.2d 691 9th cir. 1992 interpreting california law. the supreme court upheld the validity of a possessory',
11225:'interest tax on federal employees required to live in housing owned by the forest service. the court found that the',
11226:'tax was nondiscriminatory and that its legal incidence fell upon the employees and not the united states. united states v.',
11227:'county of fresno, 429 u.s. 452 1977; see also b251228, july 20, 1993; b191232, june 20, 1978. similarly, a tax',
11228:'on a federal contractor who had the beneficial use of a government owned experimental fusion device was held lawful and',
11229:'payable by the contractor. county of san diego, 965 f.2d at 691. the device, which weighed between 400 and 500',
11230:'tons, was deemed a “fixture” annexed to the property by gravity. united states v. county of san diego, 53 f.3d',
11231:'965, 968 9th cir., cert. denied, 516 u.s. 867 1995. where the government provides quarters for employees and collects rent',
11232:'under 5 u.s.c. § 5911, the rental rate may be adjusted to discount an applicable possessory interest tax, but the',
11233:'adjustment must be approved by the office of management and budget and may not be retroactive. b194420, oct. 15, 1981.',
11234:'6 occupational license fees occupational license fees or employment taxes are fees imposed by a state or local jurisdiction, usually',
11235:'on members of a particular occupation or profession, such as doctors, attorneys, and accountants, as a prerequisite to being able',
11236:'to work or practice in that jurisdiction. apart from the question page 4306 gao04261sp appropriations law—vol. i chapter 4 availability',
11237:'of appropriations: purpose e. refund and recovery of tax improperly paid of a state’s authority to impose such fees on',
11238:'federal employees performing federal functions, gao had consistently ruled that absent specific statutory authority, agencies could not use appropriated funds',
11239:'to pay these fees. e.g., 47 comp. gen. 116 1967. gao reasoned that federal employees have the burden of qualifying',
11240:'themselves for the performance of official duties and, therefore, federal employees had to pay any expense associated with becoming qualified.',
11241:'22 comp. gen. 460 1942. thanks to a statutory change, however, agencies now have the discretion to use available funds',
11242:'to pay the expenses of an employee to obtain professional credentials, including stateimposed professional licenses, certifications, and for the examinations',
11243:'required to obtain these credentials. 5 u.s.c. § 5757. for further discussion and case citations, see sections c.13.e personal qualification',
11244:'expenses and c.12.b membership fees—attorneys of this chapter. gao has held that improperly paid taxes may be recovered by setoff',
11245:'against other moneys payable to a state. b150228, aug. 5, 1973; see united states v. munsey trust co., 332 u.s.',
11246:'234, 239–40 1947 united states as a creditor is entitled to set off amounts it is owed from amounts otherwise',
11247:'payable. setoff may be asserted against any money payable to any other agency of the state, whether or not related',
11248:'to the source of the erroneous payments. b154778, aug. 6, 1964; b154113, june 24, 1964; b150228, aug. 5, 1963.192 some',
11249:'states provide for refunds of certain taxes paid by the united states. in evaluating these refund provisions, it is important',
11250:'to determine whether the tax subject to refund is a vendor tax or a vendee tax. if the tax is',
11251:'a vendor tax, the united states is not constitutionally immune from payment. thus, any right to a refund of a',
11252:'vendor tax is purely a creature of state law and the united states must comply with any conditions and limitations',
11253:'imposed by state law. b100300, june 28, 1965.193 if, however, the tax is a vendee tax, the government’s right to',
11254:'a refund is based on the constitution and is wholly independent of state law. therefore, in claiming a refund in',
11255:'192 as explored in chapter 13 volume iii of the second edition of principles of federal appropriations law, the debt',
11256:'collection act of 1982 permits using offset against state or local governments. setoff against advances under a federal grant program',
11257:'is discussed in chapter 10 volume iii of the second edition of principles. 193 that a state law permits refunds',
11258:'to the united states as the ultimate bearer of the tax in certain situations does not transfer the legal incidence',
11259:'of the tax to the vendee. b152995, jan. 30, 1964. see also 27 comp. gen. 179 1947. page 4307 gao04261sp',
11260:'appropriations law—vol. i chapter 4 availability of appropriations: purpose this situation, the united states is not bound by restrictions in',
11261:'state law, such as state statutes of limitations. united states v. michigan, 851 f.2d 803, 809–10 6th cir. 1988; b154778,',
11262:'aug. 6, 1964; b100300, feb. 10, 1956. using an established refund mechanism is the preferred method of recovering improperly paid',
11263:'taxes. 42 comp. gen. 593 1963. thus, upon the request of a state, and as long as the interests of',
11264:'the united states will be protected, setoff may be deferred pending the filing of a formal claim with the appropriate',
11265:'state agency. b151095, jan. 2, 1964. however, if the state refuses a refund to which the united states is entitled,',
11266:'setoff is again the proper remedy if legally available. 39 comp. gen. 816 1960; b162005, apr. 8, 1968. where a',
11267:'sales tax has been improperly paid, the vendor is little more than a collection agent for the state and the',
11268:'state is the ultimate beneficiary of the improper payment. therefore, collection action should proceed against the state rather than by',
11269:'setoff against the vendor. 42 comp. gen. 179 1962. in the course of resolving problems over the liability of the',
11270:'united states to pay a particular tax, the government has entered into various arrangements with states pending the outcome of',
11271:'litigation. in one case, the government agreed with a state taxing authority to file tax forms without remitting any money,',
11272:'and to make the actual payments upon a final judicial determination in a pending test case that the tax was',
11273:'valid. b160920, may 10, 1967. the decision, after the supreme court upheld the validity of the tax, held that the',
11274:'back taxes should be paid notwithstanding expiration of the state statute of limitations. in another case, the government negotiated an',
11275:'agreement with contractors whose contracts were being subjected to a questionable state sales tax, under which the general services administration',
11276:'agreed to pay the tax and the contractors promised to refund the amounts paid if it was ultimately determined that',
11277:'the government’s immunity applied. b170899, nov. 16, 1970. see also 50 comp. gen. 343 1970. 16. telephone services a. telephone',
11278:'service to private residences 1 the statutory prohibition and its major exception a problem that existed during the early years',
11279:'of the twentieth century was an apparent tendency on the part of government officials to have page 4308 gao04261sp appropriations',
11280:'law—vol. i chapter 4 availability of appropriations: purpose telephones installed in their homes at government expense. see 53 comp. gen.',
11281:'195, 197 1973; 19 comp. dec. 350, 352 1912. it must be remembered that telephones were much more of a',
11282:'novelty in those days; we were still decades from the point where almost every american home has a private home',
11283:'telephone, not to mention a mobile or cellular phone. in any event, congress enacted legislation in 1912 to prevent the',
11284:'use of public funds for private telephone service for government officials. the portion of the statute we are concerned with',
11285:'here, 31 u.s.c. § 1348a1, provides: “except as provided in this section, appropriations are not available to install telephones in',
11286:'private residences or for tolls or other charges for telephone service from private residences.” over time statutory exceptions have been',
11287:'passed, however, eroding the once almost blanket prohibition against the payment for telephones in residences. for example, in 1995, with',
11288:'the advent of telecommuting and the flexible workplace, congress passed a major exception to the latter prohibition. agencies are expressly',
11289:'authorized to use appropriated funds: “to install telephone lines, and necessary equipment, and to pay monthly charges, in any private',
11290:'residence or private apartment of an employee who has been authorized to work at home in accordance with guidelines issued',
11291:'by the office of personnel management: provided, that the head of the department, division, bureau, or office certifies that adequate',
11292:'safeguards against private misuse exist, and that the service is necessary for direct support of the agency’s mission.” pub. l.',
11293:'no. 10452, title vi, § 620, 109 stat. 468, 501 nov. 19, 1995. so in the case of employees authorized',
11294:'to work at home under opm’s telework/telecommuting guidelines, see http://www.telework.gov, once the agency certifies that adequate safeguards against private misuse',
11295:'exist, agencies may pay for the very same charges that 31 u.s.c. § 1348a1 otherwise would have prohibited. however, barring',
11296:'application of the 1995 statutory provision allowing payment for residential telephone expenses in a telework situation and several other situationspecific',
11297:'statutory exceptions to be discussed later, the decisions under 31 u.s.c. § 1348a1 are still applicable. page 4309 gao04261sp appropriations',
11298:'law—vol. i chapter 4 availability of appropriations: purpose the decisions are fond of saying that the statute, for the most',
11299:'part, has been strictly applied. indeed, the earlier decisions are packed with the “reflex” observations that the language of the',
11300:'statute is “plain and comprehensive,” the “prohibition is mandatory,” and the statute “leaves no room for the exercise of discretion',
11301:'on the part of the accounting officers of the government.” e.g., 21 comp. gen. 997, 999 1942. as late as',
11302:'1996 one decision stated that: “the statute is plain on its face and although in today’s era of instant communications',
11303:'the statute may appear outdated, we may not rewrite the statute to fit a fashionable view of what the norm',
11304:'should be. certainly if the statute is to retain any meaning, we may not, under the guise of being essential,',
11305:'routinely grant exceptions of convenience, however beneficial the result may appear.” b262013, apr. 8, 1996. thus, the rule remains that',
11306:'charges for residential telephones installation, connection, monthly equipment rental, and basic service charges may not be paid from appropriated funds',
11307:'unless one of the statutory exceptions applies. as we shall see at the end of this section, technological advances have',
11308:'also created end runs around the statutory prohibition. 2 funds to which the statute applies the statute is a direct',
11309:'restriction on the use of appropriated funds. as such, it applies not only to direct appropriations from the treasury but',
11310:'also to funds that constitute appropriated funds by operation of law. thus, the statute applies to expenditures from the revolving',
11311:'fund established by the federal credit union act since the authority to maintain a revolving fund constitutes a continuing appropriation.',
11312:'35 comp. gen. 615, 618 1956.194 along these same lines, the comptroller general held in 4 comp. gen. 19 1924',
11313:'that the alaska railroad could not designate residential telephones as “operating expenses” and pay for them from revenues derived from',
11314:'194 but see core concepts of florida, inc. v. united states, 327 f.3d 1331, 1337 fed. cir. 2003 holding that',
11315:'revenues from revolving funds not deposited into the general fund are not “appropriated funds” under the tucker act, 28 u.s.c.',
11316:'§ 1346. the tucker act provides for jurisdiction of claims against the united states. page 4310 gao04261sp appropriations law—vol. i',
11317:'chapter 4 availability of appropriations: purpose operating the railroad. the comptroller general pointed out in that case that the authority',
11318:'to do “all necessary things” to accomplish a statutory purpose confers legal discretion, not unlimited discretion, and the authority is',
11319:'therefore subject to statutory limitations such as 31 u.s.c. § 1348. id. at 20. the same point was made in',
11320:'35 comp. gen. at 618, and in b130288, feb. 27, 1957. 3 what is a private residence? simply stated, a',
11321:'private residence is where you live as opposed to where you work, assuming the two can be distinguished. cases where',
11322:'the two cannot be distinguished are discussed later. for purposes of 31 u.s.c. § 1348, it makes no difference that',
11323:'the residence is governmentowned or on public land. 35 comp. gen. 28 1955; 7 comp. gen. 651 1928; 19 comp.',
11324:'dec. 198 1912. the statute therefore fully applies to permanent residential quarters on a military installation. 21 comp. gen. 997',
11325:'1942; b61938, sept. 8, 1950; a99355, jan. 11, 1939. it does not apply, however, to tents or other temporary structures',
11326:'on a military post, which are not available for family occupancy, notwithstanding that military personnel may use them as temporary',
11327:'sleeping quarters. 21 comp. gen. 905 1942. in 41 comp. gen. 190 1961, the statutory prohibition was held not applicable',
11328:'to the installation of telephones in hotel rooms occupied by officials on temporary duty where necessitated by the demands of',
11329:'the mission. one would have thought that all hotel rooms were already equipped with telephones by 1961. an early decision',
11330:'stated that “private” means set apart for the exclusive personal use of any one person or family. 19 comp. dec.',
11331:'at 199. in this light, the comptroller general held that appropriated funds could be used to install and operate localservice',
11332:'telephones in army barracks occupied by large numbers of enlisted personnel. 53 comp. gen. 195 1973. an earlier decision, 35',
11333:'comp. gen. 28, applied the prohibition to several government owned residences, one of which was used to house a number',
11334:'of employees. while these two cases may appear inconsistent at first glance in that the telephones in both instances would',
11335:'be available for the personal use of the residents, the apparent distinction is that army appropriations are available for the',
11336:'welfare and recreation of military personnel so that the “personal use” aspect in the army barracks case was not necessarily',
11337:'dispositive. page 4311 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose since the statute uses only the term',
11338:'“residence,” it has been held not to prohibit service charges for a dedicated telephone line, on which a navy supplied',
11339:'fax machine was installed for official use, in the private business office of a naval reserve officer. b236232, oct. 25,',
11340:'1990. note that although the principles in the above cases still are pertinent where 31 u.s.c. § 1348a applies, 31',
11341:'u.s.c. § 1348c authorizes the department of defense to “install, repair, and maintain telephone wiring in residences owned or leased',
11342:'by the united states government and, if necessary for national defense purposes, in other private residences.” the location of the',
11343:'installation of the telephone service is determinative even though it facilitates an employees receipt of phone messages at her residence.',
11344:'in this connection, the commodity futures trading commission was allowed to install call forwarding service in the government office of',
11345:'an employee who was permitted to work part time from her home for 6 months in order to care for',
11346:'her newly born child so as to facilitate her conducting business with commission staff and persons having business with the',
11347:'commission. since the employee would not be paid for charges for calls or other services originating from the employee’s residence,',
11348:'but rather the government was being billed for forwarding calls from the employee’s government office to her residence, 31 u.s.c.',
11349:'§ 1348a1 did not bar payment. moreover, the call forwarding was not designed to improve the employee’s personal telephone service',
11350:'or facilitate her receipt of private or personal messages. 73 comp. gen. 44 1993. 4 application of the general rule',
11351:'a large number of decisions have established that the prohibition applies even though the telephones are to be extensively used',
11352:'in the transaction of public business and even though they may be desirable or necessary from an official standpoint. 59',
11353:'comp. gen. 723, 724 1980 and cases cited therein. in this respect, there is no discretion involved. a rather stark',
11354:'application of this rule can be found in the 1996 decision quoted above, which held that the centers for disease',
11355:'control and prevention could not use appropriated funds to install telephone lines in the private residence of its director. the',
11356:'agency tried to justify the telephone lines by arguing that the director might need to respond quickly to emerging health',
11357:'crises around the world, but the agency had not explained its role in responding to emergent or urgent health crises',
11358:'and the consequences for public health and safety if it were to fail to respond immediately upon learning of the',
11359:'problems. b262013, apr. 8, 1996. page 4312 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose relevant factors are',
11360:'whether the telephone will be freely available for the employee’s personal use and whether facilities other than the employee’s residence',
11361:'exist for the transaction of official business. the employee’s personal desires are irrelevant. thus, it makes no difference that the',
11362:'employee doesn’t want the telephone and has asked to have it removed. 33 comp. gen. 530 1954; a99355, jan. 11,',
11363:'1939. the fact that a telephone is unlisted is also immaterial. 15 comp. gen. 885 1936. the rule is well',
11364:'illustrated in a 1980 decision in which the district commander of the seventh coast guard district sought to be reimbursed',
11365:'for a telephone installed in his residence. the commander was in charge of the cuban refugee freedom flotilla in the',
11366:'florida straits. he was in daily contact with the various federal, state, and local agencies involved and was required to',
11367:'be available 24 hours a day. since this situation placed a burden on the commander’s immediate family by restricting their',
11368:'personal use of the home telephone, he had another telephone installed for official business. in view of the statutory prohibition,',
11369:'and since the commander was already provided with an office by the coast guard, reimbursement could not be allowed. 59',
11370:'comp. gen. 723, supra. for an earlier decision applying the prohibition notwithstanding the need for employees to be available on',
11371:'a 24hour basis, see 11 comp. gen. 87 1931. a somewhat similar situation was presented in b130288, feb. 27, 1957.',
11372:'there, the federal mediation and conciliation service sought authority to pay for telephones in the homes of mediators stationed in',
11373:'cities where office accommodations were not provided. the mediators had to work out of their homes and were required to',
11374:'be available 24 hours a day. applying the statutory prohibition, the comptroller general concluded that the agency could not pay',
11375:'for the telephones, nor could it pay for an answering service. however, there was no reason a mediator couldn’t list',
11376:'his private telephone number under the agency’s name, and the government could pay for this listing. by doing this, the',
11377:'government would not be paying for personal use of the telephone. in b175732, may 19, 1976, it was proposed to',
11378:'install a telephone in the “galley” kitchen of the coast guard commandant’s home, for use by a “subsistence specialist” who',
11379:'worked there and presumably had no access to other telephones. the argument was that while the galley may have been',
11380:'part of the commandant’s private residence, it was the subsistence specialist’s duty station and since he had no other office,',
11381:'he had to conduct government business from the galley. gao found the proposal prohibited by 31 u.s.c. § 1348a1. although',
11382:'the duties of the subsistence page 4313 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose specialist—the procurement of',
11383:'food, supplies, and services—were official to him, they nevertheless accrued largely if not exclusively to the personal benefit of the',
11384:'commandant and were not sufficient to justify an exception. 5 exceptions as we have seen above, although the statute has',
11385:'been strictly applied, there are exceptions. first, there are statutory exceptions. one example is 31 u.s.c. § 1348a2, for residences',
11386:'owned or leased by the united states in foreign countries for use of the foreign service. another statutory exception is',
11387:'31 u.s.c. § 1348b, enacted in 1922, covering telephones deemed necessary in connection with the construction and operation of locks',
11388:'and dams for navigation, flood control, and related water uses, under regulations of the secretary of the army. a further',
11389:'and broader exception enacted in 1984 provides that under regulations prescribed by the secretary of defense, department of defense appropriations',
11390:'are available to install, repair, and maintain telephone wiring in residences owned and leased by the united states government and,',
11391:'if necessary for national defense purposes, in other private residences. 31 u.s.c. § 1348c. yet another statutory exception is provided',
11392:'in 10 u.s.c. § 1588f1 which allows the secretary concerned to install telephone lines and any necessary telecommunications equipment in',
11393:'the private residences of persons, designated in accordance with the regulations, to provide voluntary services for programs providing services to',
11394:'members of the armed forces and their families. still another is 16 u.s.c. § 580f, for telephones necessary for the',
11395:'protection of national forests. next, there are some nonstatutory exceptions. they fall generally into two categories. the first, dictated by',
11396:'common sense, involves situations where private residence and official duty station are one and the same. if the government has',
11397:'made available office facilities elsewhere, it is clear that a residential telephone cannot be charged to appropriated funds no matter',
11398:'page 4314 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose how badly it is needed for official business',
11399:'purposes. e.g., 59 comp. gen. 723 1980; 22 comp. dec. 602 1916. however, exceptions have been recognized where a governmentowned',
11400:'private residence was the only location available under the circumstances for the conduct of official business. e.g., 4 comp. gen.',
11401:'891 1925 isolated lighthouse keeper; 19 comp. dec. 350 1912 lock tender; 19 comp. dec. 212 1912 national park superintendent.',
11402:'note that in all of these cases the combined residence/duty station was governmentowned. the exception has not been extended to',
11403:'privately owned residences that are also used for the conduct of official business. 26 comp. gen. 668 1947; b130288, feb.',
11404:'27, 1957; b219084o.m., june 10, 1985. the theory seems to be that, in a privately owned residence, the degree of',
11405:'personal use as opposed to likely official need is considered so great as to warrant a stricter prohibition since there',
11406:'would be no other practical way to control abuse, whereas some flexibility is afforded for governmentowned residences where sufficient official',
11407:'use for telephones exists. 53 comp. gen. 195, 197–98 1973. note that, as stated, the express prohibition in 31 u.s.c.',
11408:'§ 1348a1 applies to residences and does not apply when telephone services are provided in a private business office. b236232,',
11409:'oct. 25, 1990. it should also be noted that isolation alone is not sufficient to justify an exception. in 35',
11410:'comp. gen. 28 1955, 31 u.s.c. § 1348a1 was held to prohibit payment for telephones in governmentowned residences of department',
11411:'of agriculture employees at a sheep experiment station. the employees claimed a need for the telephones because they frequently received',
11412:'calls outside of normal office hours from washington or to notify them of unexpected visitors and shipments of perishable goods,',
11413:'and because they were sometimes stranded in their residences by severe blizzards. here 4 comp. gen. 891 was distinguished because',
11414:'the telephone in that case was installed in a room equipped and used only as an office and was not',
11415:'readily available for personal use. the second category of nonstatutory exceptions stems from the recognition that the “evil” that 31',
11416:'u.s.c. § 1348a1 is intended to address is not the physical existence of a telephone, but the potential for charging',
11417:'the government for personal use. thus, a series of cases has approved exceptions where 1 there is an adequate justification',
11418:'of necessity for a telephone in a private residence and 2 there are adequate safeguards to prevent abuse. page 4315',
11419:'gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose this category seems to have first developed in the context',
11420:'of “military necessity” and national security justifications. for example, an exception was made to permit the installation in the residence',
11421:'of the pearl harbor fire marshal a civilian employee of a telephone extension that was mechanically limited to emergency fire',
11422:'calls. 32 comp. gen. 431 1953, modifying 32 comp. gen. 271 1952. see also 21 comp. gen. 905 1942. in',
11423:'b1281443, june 29, 1956, gao approved a proposal to install direct telephone lines from an air force command post switchboard',
11424:'to the private residences of certain highlevel civilian and military officials to ensure communications in the event of a national',
11425:'emergency. air force regulations prohibited the use of these lines for anything but urgent official business in the event of',
11426:'a national emergency and authorized the recording of conversations as a safeguard against abuse. however, a “necessity” that is little',
11427:'more than a matter of convenience is not enough to overcome the prohibition. for example, in a99355, jan. 11, 1939,',
11428:'a telephone could not be maintained at government expense in the private quarters of the officerincharge on a navy installation',
11429:'because several telephones were available in established offices on the station. this decision was followed in 21 comp. gen. 997',
11430:'1942 and 33 comp. gen. 530 1954. the prohibition applies equally to an intrabase system not connected to outside commercial',
11431:'trunk lines. b61938, sept. 8, 1950.195 relying largely on b1281443, gao approved a general services administration proposal to install federal',
11432:'secure telephone service telephones in the residences of certain highlevel civilian and military officials certified by their agency heads as',
11433:'having national security responsibilities. 61 comp. gen. 214 1982. the system was designed to provide a secure communications capability to',
11434:'permit the discussion of classified material that could not be discussed over private telephones. as in b1281443, the proposal included',
11435:'a number of safeguards against abuse, which gao deemed adequate. the concept established in the military necessity/national security cases would',
11436:'subsequently be applied in other contexts as well. thus, gao approved exceptions in the following cases: 195 the navy now',
11437:'has statutory authority to use its appropriations to pay for the installation and use except for personal longdistance calls of',
11438:'extension telephones connecting public quarters occupied by naval personnel but not civilian employees with station switchboards. 10 u.s.c. § 7576.',
11439:'page 4316 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose installation of dedicated integrated services digital network isdn',
11440:'lines to transmit data from computers in the private residences of the commissioners of the federal communications commission to the',
11441:'agency’s local area network as it permitted data encryption necessary to secure confidential communications and the commission had imposed adequate',
11442:'safeguards to prevent private use of the separate isdn lines. in this decision it was also noted that, although section',
11443:'620 of pub. l. no. 10452, 109 stat. 468, 501 nov. 19, 1995, permitting installation of phone lines for employees',
11444:'permitted to work at home, did not by its terms address presidentially appointed officers such as the commissioners, “it would',
11445:'be anomalous for us to overlook the public policy established in section 620 and apply the section 1348a1 prohibition in',
11446:'a manner to preclude government officials who are on duty 24 hours from the same conveniences as other government employees.”',
11447:'b280698, jan. 12, 1999. compare b262013, apr. 8, 1996, a decision that was issued less than 3 years earlier, in',
11448:'which the gao held that the centers for disease control and prevention could not install telephone lines in the private',
11449:'residence of its director, in part because the agency had not demonstrated that adequate safeguards to prevent misuse of the',
11450:'telephone lines would be in place. installation of telephone equipment by the internal revenue service in the homes of customer',
11451:'“assistors” who were intermittent, parttime employees. the phones to be installed had no outcall capability and could receive calls only',
11452:'from irs switching equipment. separate lines were essential because the employee’s personal phones could not be used with the irs',
11453:'equipment. b220148, june 6, 1986. see also b247857, aug. 25, 1992, in which gao held when telephone service installation in',
11454:'a private residence is of restricted use or when there are numerous safeguards and the service is deemed essential, the',
11455:'prohibition is inapplicable. the national mediation board had demonstrated the essential nature of the computer data transmission service and would',
11456:'prevent private misuse by installing dedicated telephone lines. installation of telephones in the homes of internal revenue service criminal investigators',
11457:'who were authorized to work from their homes, to be used for portable computer data transmission. gao found the agency’s',
11458:'justification adequate and approved the expenditure, contingent upon the establishment of adequate safeguards, such as page 4317 gao04261sp appropriations law—vol.',
11459:'i chapter 4 availability of appropriations: purpose those in 61 comp. gen. 214, to prevent personal use. 65 comp. gen.',
11460:'835 1986. installation of separate telephone lines in the homes of irs data transcribers authorized to work at home under',
11461:'a “flexiplace” program, again subject to the establishment of adequate safeguards. 68 comp. gen. 502 1989. installation of telephones in',
11462:'the homes of certain high level nuclear regulatory commission nrc officials to ensure immediate communication capability in the event of',
11463:'a nuclear accident. the phones would be capable of dialing only internal nrc numbers, with any other calls to be',
11464:'placed through the nrc operator. b223837, jan. 23, 1987. some of the cases noted earlier in which the prohibition was',
11465:'applied, such as 59 comp. gen. 723 and b262013, also presented strong justifications. the primary feature distinguishing these cases from',
11466:'the exceptions described above is the existence in the latter group of adequate safeguards against abuse. finally, a couple of',
11467:'cases have dealt with payment for telephone services during periods of nonoccupancy. in order to ensure continuous service, the government',
11468:'secures telephone service for the residence of the air deputy for the allied forces northern europe in norway by longterm',
11469:'lease with the norwegian telephone company. normally, the air deputy pays the charges. the question presented in 60 comp. gen.',
11470:'490 1981 was who should pay the charges accruing during a vacancy in the position. the comptroller general held that',
11471:'since the quarters were not the private residence of either the outgoing or the incoming air deputy during the period',
11472:'of vacancy, no public official received the benefit of the service during that period. therefore, payment from appropriated funds would',
11473:'not thwart the statutory purpose. the decision distinguished an earlier case, 11 comp. gen. 365 1932, denying payment for telephone',
11474:'service to the residence of the u.s. ambassador to mexico during a period when the position was vacant. in the',
11475:'1932 case, the service had been retained during the interim period mainly through inadvertence. in 60 comp. gen. 490, on',
11476:'the other hand, retention of the service was necessary to avoid delays in reinstallation when the new air deputy moved',
11477:'in. the decision did note, however, that except in limited situations of public necessity such as the one involved, page',
11478:'4318 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose b. longdistance calls c. mobile or cellular phones telephone',
11479:'service should ordinarily be canceled during periods of nonoccupancy. the longdistance telephone call certification requirement which existed at former 31',
11480:'u.s.c. § 1348b, has been repealed by section 1721 of pub. l. no. 104201, div. a, title xvii, subtitle b,',
11481:'110 stat. 2422, 2758 sept. 23, 1996. note also that agencies have adopted policies to allow limited personal use of',
11482:'office equipment, including telephones. see, e.g., 28 c.f.r. § 45.42 in which the department of justice allows limited personal telephone/fax',
11483:'calls to locations within the office’s commuting area, or that are charged to nongovernment accounts; and gao order no. 0645.1,',
11484:'limited personal use of governmentprovided office and it equipment, including internet, jan. 16, 2001, at 6a3, which allows employees to',
11485:'make occasional brief domestic telephone calls. just as significant statutory exceptions have eroded the once almost blanket prohibition against the',
11486:'payment for telephones in residences, likewise, technological advancements are eroding the application of 31 u.s.c. § 1348a in a more',
11487:'practical manner as mobile or cellular phones become ubiquitous. in a 1988 case, b229406, dec. 9, 1988, an agency official',
11488:'used his own funds to purchase a cellular telephone and have it installed in his personal automobile. gao stated with',
11489:'respect to 31 u.s.c. § 1348a that the statute addresses residences, not automobiles. concluding that “section 1348 does not apply',
11490:'to cellular phones located in private automobiles,” gao advised that the agency could reimburse business calls as long as there',
11491:'were adequate safeguards to prevent abuse. the safeguards existed in this case because all calls were individually itemized on a',
11492:'monthly basis. the decision cautioned, however, that “agency heads should strictly scrutinize automobile telephone calls before certifying them for reimbursement,”',
11493:'to ensure that the most economical means of communication are being used. subsequent decisions have approved agencies’ reimbursement, on an',
11494:'actual expense basis, for access to and use of an employee’s personal cell phone. b291076, mar. 6, 2003; b287524, oct.',
11495:'22, 2001. however the decisions have held that reimbursement may not be made on a flat rate basis. in b287524',
11496:'gao found that flat rate reimbursement was prohibited by 5 u.s.c. § 5536 as a flat rate plan raises the',
11497:'risk of improperly reimbursing employees for personal use—setting a flat fee tends to result in either a gain or a',
11498:'loss to the reimbursed employee. page 4319 gao04261sp appropriations law—vol. i chapter 4 availability of appropriations: purpose in b291076 gao',
11499:'stated that an agency may reimburse its employees for the actual costs of maintaining personal cell phone services that meet',
11500:'the agency’s minimum needs and the additional costs that may arise from any official calls actually made or received on',
11501:'the employee’s cell phone. safeguards included in the agency proposal requiring monthly, itemized service provider invoices, limiting claims to the',
11502:'expenses the agency would otherwise pay for such services, and adjusting claims to exclude hidden costs of “free” services included',
11503:'in the service provider’s plan provided adequate assurance that the reimbursements will be limited to government related calls. gao’s most',
11504:'recent decisions have assumed that an agency has the authority to purchase and issue governmentowned cellular phones, along with accessories,',
11505:'to its employees so that the employees may conduct government business. b291076 and b287524, supra. prior to the latter decisions',
11506:'gao had considered the purchase of cellular telephones for use by members of the senate and concluded that the expenditure',
11507:'was authorized from the senate’s contingent fund. b227763, sept. 17, 1987; b186877, aug. 12, 1976. the 1976 opinion had taken',
11508:'a negative view of the question from the policy perspective and suggested that more specific legislative authority would be appropriate.',
11509:'this was done and there is now express statutory authority to use the contingent fund of the senate to provide',
11510:'telecommunications services and equipment. 2 u.s.c. §§ 58a1 and 58a. however, as the later decisions, b291076 and b287524, demonstrate, gao',
11511:'did not require the agencies requesting those decisions to show express statutory authority for the purchase and issuance of cellular',
11512:'phones to their employees. gao did not object to the agencies purchasing cellular phones and issuing them to their employees',
11513:'for the conduct of government business. in b229406, supra, the purchase price of a cellular phone could not be reimbursed',
11514:'but it was clear in that case that the official intended the phone to be his own property. page 4320',
11515:'gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time a. general principles—duration of appropriations . . . . .',
11516:'. . 53 1. introduction . . . . . . . . . . . . . . .',
11517:'. . . . . . . . . . . . . . . . . . . .',
11518:'. . . . . . . . . .53 2. types of appropriations . . . . . .',
11519:'. . . . . . . . . . . . . . . . . . . .',
11520:'. . . . . . . .54 a.annual appropriations . . . . . . . . . .',
11521:'. . . . . . . . . . . . . . . . . . . .',
11522:'. . .54 b.multiple year appropriations . . . . . . . . . . . . . .',
11523:'. . . . . . . . . . . . . .57 c. noyear appropriations . . .',
11524:'. . . . . . . . . . . . . . . . . . . .',
11525:'. . . . . . . . . .57 3. obligation or expenditure prior to start of fiscal year',
11526:'. . . . . . . . 59 b. the bona fide needs rule . . . . .',
11527:'. . . . . . . . . . . . . . . . . . . .',
11528:'. . 511 1. background . . . . . . . . . . . . . . .',
11529:'. . . . . . . . . . . . . . . . . . . .',
11530:'. . . . . . . . .511 a.introduction . . . . . . . . . .',
11531:'. . . . . . . . . . . . . . . . . . . .',
11532:'. . . . . . . . . . .511 b.the concept . . . . . . .',
11533:'. . . . . . . . . . . . . . . . . . . .',
11534:'. . . . . . . . . . . . . .512 2. future years’ needs . .',
11535:'. . . . . . . . . . . . . . . . . . . .',
11536:'. . . . . . . . . . . . . . .515 3. prior years’ needs .',
11537:'. . . . . . . . . . . . . . . . . . . .',
11538:'. . . . . . . . . . . . . . . . . .518 4. delivery',
11539:'of materials beyond the fiscal year . . . . . . . . . . . . . .',
11540:'. .522 5. services rendered beyond the fiscal year . . . . . . . . . . .',
11541:'. . . . . . .523 6. replacement contracts . . . . . . . . . .',
11542:'. . . . . . . . . . . . . . . . . . . .',
11543:'. . . .528 7. contract modifications and amendments affecting price . . . . . 533 8. multiyear contracts',
11544:'. . . . . . . . . . . . . . . . . . . .',
11545:'. . . . . . . . . . . . . . . . .537 a.introduction . .',
11546:'. . . . . . . . . . . . . . . . . . . .',
11547:'. . . . . . . . . . . . . . . . . . .537 b.',
11548:'multiple year and noyear appropriations . . . . . . . . . . . . . . .',
11549:'. 539 c.fiscal year appropriations . . . . . . . . . . . . . . .',
11550:'. . . . . . . . . . . . . .541 d.contracts with no financial obligation .',
11551:'. . . . . . . . . . . . . . . . .543 9. specific statutes',
11552:'providing for multiyear and other contracting authorities . . . . . . . . . . . . .',
11553:'. . . . . . . . . . . . . . . . . . . .',
11554:'. . . . . . . . . . . .544 a.severable services contracts . . . . .',
11555:'. . . . . . . . . . . . . . . . . . . .',
11556:'. .544 b.5year contract authority . . . . . . . . . . . . . . .',
11557:'. . . . . . . . . . . . . . .545 110 u.s.c. §§ 2306b, 2306c',
11558:'. . . . . . . . . . . . . . . . . . . .',
11559:'. . . . . . 545 241 u.s.c. § 254c . . . . . . . . .',
11560:'. . . . . . . . . . . . . . . . . . . .',
11561:'. . . . . 546 c. examples of agencyspecific multiyear contracting authorities . . . . . . .',
11562:'. . . . . . . . . . . . . . . . . . . .',
11563:'. . . . . . . . . . . . . . . .547 10. grants and cooperative',
11564:'agreements . . . . . . . . . . . . . . . . . . .',
11565:'. . . .548 c. advance payments . . . . . . . . . . . . .',
11566:'. . . . . . . . . . . . . . . . . . . .',
11567:'. . 550 1. the statutory prohibition . . . . . . . . . . . . .',
11568:'. . . . . . . . . . . . . . . . . . .550 2.',
11569:'government procurement contracts . . . . . . . . . . . . . . . . .',
11570:'. . . . . .554 a. background . . . . . . . . . . . .',
11571:'. . . . . . . . . . . . . . . . . . . .',
11572:'. . . . . . . . . .554 b. contract financing . . . . . . .',
11573:'. . . . . . . . . . . . . . . . . . . .',
11574:'. . . . . . . . .555 c. payment . . . . . . . . .',
11575:'. . . . . . . . . . . . . . . . . . . .',
11576:'. . . . . . . . . . . . . . . .560 3. lease and rental',
11577:'agreements . . . . . . . . . . . . . . . . . . .',
11578:'. . . . . . . . . .562 4. publications . . . . . . . .',
11579:'. . . . . . . . . . . . . . . . . . . .',
11580:'. . . . . . . . . . . . . . . .563 5. other governmental entities',
11581:'. . . . . . . . . . . . . . . . . . . .',
11582:'. . . . . . . . .565 d. disposition of appropriation balances . . . . . .',
11583:'. . . . . . . . . . 567 1. terminology . . . . . . .',
11584:'. . . . . . . . . . . . . . . . . . . .',
11585:'. . . . . . . . . . . . . . . . .567 page 51 gao04261sp',
11586:'appropriations law—vol. i chapter 5 availability of appropriations: time 2. evolution of the law . . . . . .',
11587:'. . . . . . . . . . . . . . . . . . . .',
11588:'. . . . . . . . . .568 3. expired appropriation accounts . . . . . .',
11589:'. . . . . . . . . . . . . . . . . . . .571',
11590:'4. closed appropriation accounts . . . . . . . . . . . . . . . .',
11591:'. . . . . . . . . . .573 5. exemptions from the account closing procedures . .',
11592:'. . . . . . . . . 575 6. noyear appropriations . . . . . . .',
11593:'. . . . . . . . . . . . . . . . . . . .',
11594:'. . . . . . .577 7. repayments and deobligations . . . . . . . . .',
11595:'. . . . . . . . . . . . . . . . . .578 a. repayments',
11596:'. . . . . . . . . . . . . . . . . . . .',
11597:'. . . . . . . . . . . . . . . . . . . .',
11598:'. .578 b.deobligations . . . . . . . . . . . . . . . . .',
11599:'. . . . . . . . . . . . . . . . . . . .',
11600:'. . .580 e. effect of litigation on period of availability . . . . . . . . .',
11601:'. 581 page 52 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time a. general principles— duration of appropriations',
11602:'1. introduction as we have emphasized in several places in this publication, the concept of the “legal availability” of appropriations',
11603:'is defined in terms of three elements—purpose, time, and amount. chapter 4 focused on purpose; this chapter addresses the second',
11604:'element, time. the two basic authorities conferred by an appropriation law are the authority to incur obligations and the authority',
11605:'to make expenditures. an obligation results from some action that creates a liability or definite commitment on the part of',
11606:'the government to make an expenditure. the concept of “obligation” and the criteria for charging obligations against appropriations are discussed',
11607:'in detail in chapter 7. the expenditure is the disbursement of funds to pay the obligation. while an obligation and',
11608:'expenditure may occur simultaneously, ordinarily the obligation precedes the expenditure in time. this chapter discusses the limitations on the use',
11609:'of appropriations relating to time—when they may be obligated and when they may be expended. many of the rules are',
11610:'statutory and will be found in the provisions of title 31, united states code, cited throughout this chapter. our starting',
11611:'point is the firmly established proposition that— “congress has the right to limit its appropriations to particular times as well',
11612:'as to particular objects, and when it has clearly done so, its will expressed in the law should be implicitly',
11613:'followed.” 13 op. att’y gen. 288, 292 1870. the placing of time limits on the availability of appropriations is one',
11614:'of the primary means of congressional control. by imposing a time limit, congress reserves to itself the prerogative of periodically',
11615:'reviewing a given program or agency’s activities. when an appropriation is by its terms made available for a fixed period',
11616:'of time or until a specified date, the general rule is that the availability relates to the authority to obligate',
11617:'the appropriation, and does not necessarily page 53 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time prohibit payments',
11618:'after the expiration date for obligations previously incurred, unless the payment is otherwise expressly prohibited by statute. 37 comp. gen.',
11619:'861, 863 1958; 23 comp. gen. 862 1944; 18 comp. gen. 969 1939; 16 comp. gen. 205 1936. thus, a',
11620:'timelimited appropriation is available to incur an obligation only during the period for which it is made. however, it remains',
11621:'available beyond that period, within limits, to make adjustments to the amount of such obligations and to make payments to',
11622:'liquidate such obligations. in this connection, 31 u.s.c. § 1502a provides: “the balance of an appropriation or fund limited for',
11623:'obligation to a definite period is available only for payment of expenses properly incurred during the period of availability or',
11624:'to complete contracts properly made within that period of availability and obligated consistent with section 1501 of this title. however,',
11625:'the appropriation or fund is not available for expenditure for a period beyond the period otherwise authorized by law.” in',
11626:'addition, there are situations in which appropriations may be “held over” by statute and by judicial decree for obligation beyond',
11627:'their expiration date. the concepts summarized in this paragraph will be explored in depth elsewhere in this chapter. 2. types',
11628:'of appropriations classified on the basis of duration, appropriations are of three types: annual, multiple year, and noyear appropriations. a.',
11629:'annual appropriations annual appropriations also called fiscal year or 1year appropriations are made for a specified fiscal year and are',
11630:'available for obligation only during the fiscal year for which made. the federal government’s fiscal year begins on october 1',
11631:'and ends on september 30 of the following year. 31 u.s.c. § 1102. for example, fiscal year 2005 begins on',
11632:'october 1, 2004, and ends on september 30, 2005. all appropriations are presumed to be annual appropriations unless the appropriation',
11633:'act expressly provides otherwise. there are several reasons for this. first, as required by 1 u.s.c. § 105, the title',
11634:'and enacting clause of all regular and supplemental appropriation acts specify the making of appropriations “for the fiscal year ending',
11635:'september 30, here insert the calendar year.” thus, everything in an appropriation act is presumed to be page 54 gao04261sp',
11636:'appropriations law—vol. i chapter 5 availability of appropriations: time applicable only to the fiscal year covered unless specified to the',
11637:'contrary. second, 31 u.s.c. § 1301c provides that, with specified exceptions: “an appropriation in a regular, annual appropriation law may',
11638:'be construed to be permanent or available continuously only if the appropriation— …. “2 expressly provides that it is available',
11639:'after the fiscal year covered by the law in which it appears.” third, appropriation acts commonly include a general provision',
11640:'similar to the following: “no part of any appropriation contained in this act shall remain available for obligation beyond the',
11641:'current fiscal year unless expressly so provided herein.”1 under the plain terms of this provision, the origin of which has',
11642:'previously been discussed in chapter 2, section c.2.d, the availability of an appropriation to incur a new obligation may not',
11643:'be extended beyond the fiscal year for which it is made absent express indication in the appropriation act itself. 71',
11644:'comp. gen. 39 1991; 58 comp. gen. 321 1979; b118638, nov. 4, 1974. a limitation item included in an appropriation',
11645:'for example, a lumpsum appropriation with a proviso that not to exceed a specified sum shall be available for a',
11646:'particular object is subject to the same fiscal year limitation attaching to the parent appropriation unless the limitation is specifically',
11647:'1 see, e.g., the following fiscal year 2002 appropriation acts: pub. l. no. 10776, § 706, 115 stat. 704, 732',
11648:'nov. 28, 2001 agriculture; pub. l. no. 10777, § 602, 115 stat. 748, 798 nov. 28, 2001 commerce, justice, state;',
11649:'pub. l. no. 107117, § 8003, 115 stat. 2230, 2247 jan. 10, 2002 defense; pub. l. no. 10796, § 104,',
11650:'115 stat. 923, 946 nov. 21, 2001 district of columbia; pub. l. no. 107115, § 511, 115 stat. 2118, 2141',
11651:'jan. 10, 2002 foreign operations; pub. l. no. 10763, § 303, 115 stat. 414, 465 nov. 5, 2001 interior; pub.',
11652:'l. no.107116, § 502, 115 stat. 2177, 2217 jan. 10, 2002 labor, health and human services, education; pub. l. no.',
11653:'10768, § 302, 115 stat. 560, 591 nov. 12, 2001 legislative; pub. l. no. 10787, § 306, 115 stat. 833,',
11654:'855 dec. 18, 2001 transportation; pub. l. no. 10767, § 501, 115 stat. 514, 543 nov. 12, 2001 treasury. page',
11655:'55 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time exempted from it in the appropriation act. 37 comp.',
11656:'gen. 246, 248 1957; b274576, jan. 13, 1997. annual appropriations are available only to meet bona fide needs of the',
11657:'fiscal year for which they were appropriated. the socalled “bona fide needs rule” is covered in detail in this chapter',
11658:'in section b. if an agency fails to obligate its annual funds by the end of the fiscal year for',
11659:'which they were appropriated, they cease to be available for incurring and recording new obligations and are said to have',
11660:'“expired.” this rule— that timelimited budget authority ceases to be available for incurring new obligations after the last day of',
11661:'the specified time period—has been termed an “elementary principle” of federal fiscal law. city of houston, texas v. department of',
11662:'housing & urban development, 24 f.3d 1421, 1426 d.c. cir. 1994; west virginia ass’n of community health centers, inc. v.',
11663:'heckler, 734 f.2d 1570, 1576 d.c. cir. 1984. see also 18 comp. gen. 969, 971 1939. annual appropriations remain available',
11664:'for an additional five fiscal years beyond expiration, however, to adjust and make payments to liquidate liabilities arising from obligations',
11665:'made within the fiscal year for which the funds were appropriated. 31 u.s.c. § 1553a, as amended by pub. l.',
11666:'no. 101510, § 1405a, 104 stat. 1676 nov. 5, 1990. the principles summarized in this paragraph are discussed in this',
11667:'chapter in section d. the above principles are illustrated in 56 comp. gen. 351 1977. in that case, the interior',
11668:'department proposed to obtain and exercise options on certain land, obligate the full purchase price, and take immediate title to',
11669:'and possession of the property. payment of the purchase price, however, would be disbursed over a period of up to',
11670:'4 years. the reason being that, in view of the capital gains tax, the seller would have insisted on a',
11671:'higher purchase price if payment was to be made in a lump sum. the comptroller general concluded that the proposal',
11672:'was not legally objectionable, provided that a a bona fide need for the property existed in the fiscal year in',
11673:'which the option was to be exercised and b the full purchase price was obligated against appropriations for the fiscal',
11674:'year in which the option was exercised. as long as these conditions were met—obligation within the period of availability for',
11675:'a legitimate need existing within that period—the timing of actual disbursements over a 4year period was irrelevant. just as congress',
11676:'can by statute expand the obligational availability of an appropriation beyond a fiscal year, it can also reduce the availability',
11677:'to a fixed period less than a full fiscal year. to illustrate, a fiscal year 1980 appropriation for the now',
11678:'defunct community services administration page 56 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time included funds for emergency',
11679:'energy assistance grants. since the program was intended to provide assistance for increased heating fuel costs, and congress did not',
11680:'want the funds to be used to buy air conditioners, the appropriation specified that awards could not be made after',
11681:'june 30, 1980.2 appropriations available for obligation for less than a full fiscal year are, however, uncommon. finally, congress may',
11682:'pass a law to rescind the unobligated balance of a fixed annual or multiple year appropriation at any time prior',
11683:'to the accounts closing.3 the law may be passed at the initiation of the president pursuant to the impoundment procedures',
11684:'see discussion in chapter 1, section d.3 or by congress as part of its regular legislative process. b. multiple year',
11685:'appropriations multiple year appropriations are available for obligation for a definite period in excess of one fiscal year. 37 comp.',
11686:'gen. 861, 863 1958. for example, if a fiscal year 2005 appropriation act includes an appropriation account that specifies that',
11687:'it shall remain available until september 30, 2006, it is a 2year appropriation. as a more specific illustration, the appropriation',
11688:'accounts for military construction are typically 5year appropriations.4 apart from the extended period of availability, multiple year appropriations are subject',
11689:'to the same principles applicable to annual appropriations and do not present any special problems. c. noyear appropriations a noyear',
11690:'appropriation is available for obligation without fiscal year limitation. for an appropriation to be considered a noyear appropriation, the appropriating',
11691:'language must expressly so provide. 31 u.s.c. § 1301c. the standard language used to make a noyear appropriation is “to',
11692:'remain available until expended.” 40 comp. gen. 694, 696 1961; 3 comp. dec. 623, 628 1897; b279886, apr. 28, 1998;',
11693:'b271607, june 3, 1996. 2 department of the interior and related agencies appropriation act, 1980, pub. l. no. 96126, 93',
11694:'stat. 954, 978 nov. 27, 1979. due to a severe heat wave in the summer of 1980, the program was',
11695:'expanded to include fans and the appropriation was subsequently extended to the full fiscal year pub. l. no. 96321, 94',
11696:'stat. 1001 aug. 4, 1980. 3 e.g., emergency wartime supplemental appropriations act, 2003, pub. l. no. 10811, 117 stat. 559,',
11697:'571, 591–593 apr. 16, 2003; consolidated appropriations resolution, 2003, pub. l. no. 1087, 117 stat. 11, 106, 107 feb. 20,',
11698:'2003. 4 see, e.g., the military construction appropriations act, 2002, pub. l. no. 10764, 115 stat. 474 nov. 5, 2001.',
11699:'page 57 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time however, other language will suffice as long as',
11700:'its meaning is unmistakable, such as “without fiscal year limitation.” 57 comp. gen. 865, 869 1978. unless canceled in accordance',
11701:'with 31 u.s.c. § 1555 or rescinded by another law, there are no time limits as to when noyear funds',
11702:'may be obligated and expended and the funds remain available for their original purposes until expended. 43 comp. gen. 657',
11703:'1964; 40 comp. gen. 694 1961. this includes earmarks applicable to the use of noyear funds since they are coextensive',
11704:'with, and inseparable from, the period of availability of the noyear appropriation to which they relate. b274576, jan. 13, 1997.',
11705:'a small group of decisions involves the effect of subsequent congressional action on the availability of a prior years noyear',
11706:'appropriation. in one case, congress had made a noyear appropriation to the federal aviation administration for the purchase of aircraft.',
11707:'a question arose as to the continued availability of the appropriation because, in the following year, congress explicitly denied a',
11708:'budget request for the same purpose. the comptroller general held that the subsequent denial did not restrict the use of',
11709:'the unexpended balance of the prior noyear appropriation. the availability of the prior appropriation could not be changed by a',
11710:'later act “except in such respects and to such extent as is expressly stated or clearly implied by such act.”',
11711:'40 comp. gen. 694, 696 1961. see also atlantic fish spotters ass’n v. evans, 321 f.3d 220 1st cir. 2003;',
11712:'b200519, nov. 28, 1980. in another case, a noyear appropriation for the national capital park and planning commission included a',
11713:'monetary ceiling on noncontract services during the fiscal year. based on the apparent intent of the ceiling, gao concluded that',
11714:'the specific restriction had the effect of suspending the “available until expended” provision of prior unrestricted noyear appropriations as far',
11715:'as personal services were concerned, for any fiscal year in which the restriction was included. thus, unobligated balances of prior',
11716:'unrestricted noyear appropriations could not be used to augment the ceiling. 30 comp. gen. 500 1951. a similar issue was',
11717:'considered in 62 comp. gen. 692 1983. the nuclear regulatory commission received a noyear appropriation that included a prohibition on',
11718:'compensating intervenors. the decision held that the unobligated balance of a prior unrestricted noyear appropriation could be used to pay',
11719:'an equal access to justice act award to an intervenor made in a restricted year, where part of the proceeding',
11720:'giving rise to the award was funded by an unrestricted appropriation. unlike the situation in 30 comp. gen. 500, the',
11721:'restriction in page 58 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time the 1983 case was expressly limited',
11722:'to “proceedings funded in this act,” and thus could have no effect on the availability of prior appropriations. similar issues',
11723:'were considered in the context of multiple year appropriations in 31 comp. gen. 368 1952 and 31 comp. gen. 543',
11724:'1952, overruling 31 comp. gen. 275 1952. in both of these cases, based on a determination of congressional intent, it',
11725:'was held that the current restriction had no effect on the availability of unobligated balances of prior unrestricted appropriations. noyear',
11726:'appropriations have advantages and disadvantages. the advantages to the spending agency are obvious. from the legislative perspective, a key disadvantage',
11727:'is a loss of congressional control over actual program levels from year to year. gao has expressed the position that',
11728:'noyear appropriations should not be made in the absence of compelling programmatic or budgetary reasons. see u.s. general accounting office,',
11729:'noyear appropriations in the department of agriculture, pad7874 washington, d.c.: sept. 19, 1978. 3. obligation or expenditure prior to start',
11730:'of fiscal year in considering what may and may not be done before the start of a fiscal year, it',
11731:'is necessary to keep in mind the antideficiency act, which prohibits obligations or expenditures in advance of appropriations, 31 u.s.c.',
11732:'§ 1341a, and apportionments, 31 u.s.c. § 1517a.5 by virtue of this law, certainly no obligations may be incurred before',
11733:'the appropriation act is enacted and amounts apportioned to the agency, unless specifically authorized by law.6 there are some decisions',
11734:'that stand for the proposition that if the appropriation act is passed by both houses of congress and signed by',
11735:'the president prior to the start of the fiscal year for which the appropriation is being made, contracts may be',
11736:'entered into upon enactment and before the start of the fiscal year, provided that no payments or expenditures may be',
11737:'made under them until the start of the fiscal year. any such contract should make this limitation clear. 20 comp.',
11738:'gen. 868 1941; 16 comp. gen. 1007 1937; 4 comp. gen. 887 1925; 2 comp. gen. 739 1923; 11 comp.',
11739:'dec. 186 1904; 4 lawrence, first comp. dec. 132 1883; b20670, oct. 18, 5 see chapter 6, section c for',
11740:'a discussion of the apportionment process. 6 see chapter 5, section b. page 59 gao04261sp appropriations law—vol. i chapter 5',
11741:'availability of appropriations: time 1941; a19524, aug. 26, 1927. gao did not view the contract as an obligation in violation',
11742:'of the antideficiency act since, even though the time period covered by the appropriation to be charged had not yet',
11743:'started, the appropriation had already been enacted into law. these decisions addressed these contracts from an antideficiency act perspective, and',
11744:'did not address the bona fide needs rule. in other decisions, the comptroller general has expressed the opinion that, in',
11745:'the absence of any other statutory authority, the awarding o32“conditional contract” prior to the enactment of the appropriation act to',
11746:'be charged with the obligation does not raise antideficiency act or bona fide needs issues when the government’s liability is',
11747:'contingent upon the future availability of appropriations. the contract must expressly provide: 1. that no legal liability on the part',
11748:'of the government arises until the appropriation is made available within the agency to fund the obligation and 2. that',
11749:'notice is to be given by the agency to the contractor before the contractor may proceed. see b1717981, aug. 18,',
11750:'1971, at 11–12.7 such express provisions are necessary to make explicit what is meant by the term “contingent upon the',
11751:'future availability of appropriations” in order to avoid antideficiency act problems,8 and to permit the agency to maintain effective internal',
11752:'controls over the obligating of appropriations. of course, congress may by statute authorize the actual expenditure of appropriations prior to',
11753:'the beginning of the fiscal year, in which event the above rule does not apply. 4 comp. gen. 918 1925.',
11754:'this result may also follow if an appropriation is made to carry out the provisions of another law that clearly',
11755:'by its terms requires immediate action. e.g., 1 comp. dec. 329 1895. 7 see also 39 comp. gen. 776 1960;',
11756:'39 comp. gen. 340 1959; 21 comp. gen. 864 1942; b239435, aug. 24, 1990. see also the discussion in chapter',
11757:'6, section c.2.b. 8 see chapter 6, section c.2.b, “multiyear or continuing contracts,” particularly the discussion of leiter v. united',
11758:'states, 271 u.s. 204 1925. see also cray research, inc. v. united states, 44 fed. cl. 327, 332–333 1999 discussing',
11759:'leiter and the antideficiency act. page 510 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time b. the bona',
11760:'fide needs rule 1. background a. introduction over a century ago, the comptroller of the treasury stated, “an appropriation should',
11761:'not be used for the purchase of an article not necessary for the use of a fiscal year in which',
11762:'ordered merely in order to use up such an appropriation.” 8 comp. dec. 346, 348 1901. the bona fide needs',
11763:'rule is one of the fundamental principles of appropriations law: a fiscal year appropriation may be obligated only to meet',
11764:'a legitimate, or bona fide, need arising in, or in some cases arising prior to but continuing to exist in,',
11765:'the fiscal year for which the appropriation was made. citations to this principle are numerous. see, e.g., 33 comp. gen.',
11766:'57, 61 1953; 16 comp. gen. 37 1936; b289801, dec. 30, 2002; b282601, sept. 27, 1999; b235678, july 30, 1990.',
11767:'does the quotation above, from the comptroller of the treasury, mean that an agency’s obligation of an annual appropriation on',
11768:'the last day of the fiscal year can never constitute a bona fide need of that fiscal year? while it',
11769:'certainly should raise a question, the answer is, “it depends.” an agency may have perfectly valid reasons for yearend spending.',
11770:'for example, some programs have predictable 4th quarter surges due to cyclical or seasonal requirements. when using timelimited funding, an',
11771:'agency must dissect its ongoing business into discrete units of time in order to determine whether a particular transaction may',
11772:'be obligated against, or charged to, a specific appropriation. the bona fide needs rule provides an analytical framework for analyzing',
11773:'an agency’s financial transactions to determine the period of time to which a transaction relates. bona fide needs questions arise',
11774:'in many forms. historically, as the discussion that follows will show, bona fide needs issues have arisen most frequently in',
11775:'the context of the acquisition of goods or services. an agency may enter into a contract in one fiscal year,',
11776:'but the contractor does not complete performance until the next fiscal year. which fiscal year should be charged? or, an',
11777:'agency may modify a contract in the year following the fiscal year in which it originally entered into the contract.',
11778:'sometimes, as a result of an audit, the question may be whether an obligation already recorded was a proper charge',
11779:'against that fiscal year’s appropriation. or, page 511 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time an agency',
11780:'may have taken certain actions that it should have recorded as an obligation but did not; when the time for',
11781:'payment arrives, the question again is which fiscal year to charge. these are all facets of the same basic question—whether',
11782:'an obligation bears a sufficient relationship to the legitimate needs of the time period of availability of the appropriation charged',
11783:'or sought to be charged. although the bona fide needs rule remains one of the bedrock principles of appropriations law,',
11784:'its application has changed over the years as congress enacted statutes redefining in some instances what constitutes a bona fide',
11785:'need of a fiscal year appropriation. during a period of ever increasing budget constraints in the 1990s, congress enacted laws',
11786:'providing civilian agencies more flexibility in their use of fiscal year appropriations, and expanded already existing authorities of defense agencies.',
11787:'today, there is general authority permitting agencies to use fiscal year funds to acquire goods and services via multiyear acquisitions,',
11788:'and to enter into 1year contracts for severable services that cross fiscal years. these laws have provided agencies with substantial',
11789:'flexibility to allocate the cost of goods and services across fiscal years, or to allocate the costs to the first',
11790:'fiscal year of the contract even though the goods or services may be delivered in future fiscal years. notwithstanding the',
11791:'increased flexibilities agencies now have, the bona fide needs rule remains an important and often complex consideration for an agency',
11792:'as it executes its budget. in this section, we discuss the basic concept underlying the rule. we then discuss the',
11793:'traditional application of the rule in sections b.2 through b.7, followed by a discussion of the recent statutory developments in',
11794:'the acquisition of goods and services area in sections b.8 and b.9. it is important to know both the traditional',
11795:'application as well as recently enacted flexibilities in order to understand the contracting options now available to agencies as they',
11796:'decide how to use their appropriations. we discuss the application of the rule in the grants and cooperative agreements context',
11797:'in section b.10. b. the concept the bona fide needs rule has a statutory basis. as noted in chapter 1,',
11798:'the first general appropriation act in 1789 made appropriations “for the service of the present year,” and this concept continues',
11799:'to this time. this “oneyear” concept is also reflected in 31 u.s.c. § 1502a, sometimes called the “bona fide needs',
11800:'statute.” originally enacted in 1870 16 stat. 251 july12, 1870, section 1502a provides that the balance of a fixedterm appropriation',
11801:'“is available only for payment of expenses properly incurred during the period of availability or to complete contracts properly made',
11802:'within that page 512 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time period….” the key word here is',
11803:'“properly”—expenses “properly incurred” or contracts “properly made” within the period of availability. see, e.g., 37 comp. gen. 155, 158 1957.',
11804:'additional statutory support for the rule is found in the antideficiency act, 31 u.s.c. § 1341a, and the socalled adequacy',
11805:'of appropriations act, 41 u.s.c. § 11. bona fide needs questions may involve other statutory restrictions as well. it also',
11806:'should be apparent that they are closely related to the subject matter covered in chapter 7 on obligations. for an',
11807:'early but still relevant and useful discussion, see 6 comp. dec. 815 1900. while the rule itself is universally applicable,',
11808:'determination of what constitutes a bona fide need of a particular fiscal year depends largely on the facts and circumstances',
11809:'of the particular case. 70 comp. gen. 469, 470 1991; 44 comp. gen. 399, 401 1965; 37 comp. gen. at',
11810:'159. in its most elementary form—where the entire transaction contract or purchase, delivery or other performance, and payment takes place',
11811:'during the same fiscal year—the rule means simply that the appropriation is available only for the needs of the current',
11812:'year. a common application of the rule in this context is that an appropriation is not available for the needs',
11813:'of a future year. for example, suppose that, as the end of a fiscal year approaches, an agency purchases a',
11814:'truckload of pencils when it is clear that, based on current usage, it already has in stock enough pencils to',
11815:'last several years into the future. it would seem apparent that the agency was merely trying to use up its',
11816:'appropriation before it expired, and the purchase would violate the bona fide needs rule. we do not mean to suggest',
11817:'that an agency may purchase only those supplies that it will actually use during the fiscal year. agencies normally maintain',
11818:'inventories of common use items. the bona fide needs rule does not prevent maintaining a legitimate inventory at reasonable and',
11819:'historical levels, the “need” being to maintain the inventory level so as to avoid disruption of operations. the problem arises',
11820:'when the inventory crosses the line from reasonable to excessive. future years’ needs and yearend spending are covered further in',
11821:'section b.2 of this chapter. prior years’ needs are covered in section b.3 of this chapter. bona fide needs questions',
11822:'also frequently involve transactions that cover more than one fiscal year. in the typical situation, a contract is made or',
11823:'attempted to be made in one fiscal year, with performance and payment to extend at least in part into the',
11824:'following fiscal year. the question is which fiscal year should be charged with the obligation. in this context, the rule',
11825:'is page 513 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time that, in order to obligate a fiscal',
11826:'year appropriation for payments to be made in a succeeding fiscal year, the contract imposing the obligation must have been',
11827:'made within the fiscal year sought to be charged, and the contract must have been made to meet a bona',
11828:'fide need of the fiscal year to be charged. e.g., 70 comp. gen. 664, 667 1991; 64 comp. gen. 359,',
11829:'362 1985; 35 comp. gen. 692 1956; 20 comp. gen. 436 1941; 16 comp. gen. 37 1936; 21 comp. dec.',
11830:'822 1915; 4 comp. dec. 553 1898; b289801, dec. 30, 2002; b257977, nov. 15, 1995. the principle that payment is',
11831:'chargeable to the fiscal year in which the obligation is incurred as long as the need arose, or continued to',
11832:'exist in, that year applies even though the funds are not to be disbursed and the exact amount owed by',
11833:'the government cannot be determined until the subsequent fiscal year. e.g., 71 comp. gen. 502 1992; 21 comp. gen. 574',
11834:'1941. thus, in a case where the united states entered into an agreement with a state to provide assistance for',
11835:'the procurement of civil defense items for the state and to pay a specified percentage of the cost, the comptroller',
11836:'general found that the need arose in the year the agreement with the state was made. therefore, appropriations current at',
11837:'that time were to be charged with the cost, notwithstanding the fact that the states or the united states may',
11838:'not have negotiated and executed the actual procurement contracts with suppliers, including the exact price, until a subsequent fiscal year.',
11839:'31 comp. gen. 608 1952. several sections of this chapter, starting with b.4, explore the application of the bona fide',
11840:'needs rule in various aspects of government contracting in which transactions cover more than one fiscal year. we have structured',
11841:'these sections in large measure on a comprehensive and welldocumented article by capt. dale gallimore entitled legal aspects of funding',
11842:'department of the army procurements, 67 mil. l. rev. 85 1975. the bona fide needs rule applies to multiple year',
11843:'as well as fiscal year appropriations. 55 comp. gen. 768, 773–74 1976; b235678, july 30, 1990. see also 64 comp.',
11844:'gen. 163, 166 1984. in other words, an agency may use a multiple year appropriation for needs arising at any',
11845:'time during the period of availability. an argument can be made, not wholly without logic, that a multiple year appropriation',
11846:'can be obligated at any time during its availability, but only to meet a bona fide need of the year',
11847:'in which the funds were appropriated. suppose, for example, that an agency receives a 2year appropriation every year. for fiscal',
11848:'year 1989, it receives an appropriation available through page 514 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time',
11849:'fiscal year 1990; for fiscal year 1990, it receives an appropriation available through fiscal year 1991, and so on. it',
11850:'is possible to apply the bona fide needs rule to require that the fiscal year 1990 appropriation be used only',
11851:'for needs arising in fiscal year 1990, although obligation may occur any time prior to the end of fiscal year',
11852:'1991. the comptroller general specifically rejected this approach in 68 comp. gen. 170 1989, holding that the defense logistics agency',
11853:'could use its fiscal year 1987 2year research and development appropriation for a need arising in fiscal year 1988. “there',
11854:'is no requirement that 2year funds be used only for the needs of the first year of their availability.” id.',
11855:'at 172. it follows that the bona fide needs rule does not apply to noyear funds. 43 comp. gen. 657,',
11856:'661 1964. see also b279886, apr. 28, 1998. without a prescribed period of availability, there is no fixed period during',
11857:'which the bona fide need must arise, and thus no fixed period in which the funds must be obligated and',
11858:'expended. 2. future years’ needs an appropriation may not be used for the needs of some time period subsequent to',
11859:'the expiration of its period of availability. with respect to annual appropriations, a more common statement of the rule is',
11860:'that an appropriation for a given fiscal year is not available for the needs of a future fiscal year.9 determining',
11861:'the year to which a need relates is not always easy. some illustrative cases are listed below: the balance of',
11862:'an appropriation for salaries remaining unexpended at the end of one fiscal year could not be used to pay salaries',
11863:'for services rendered in the following fiscal year. 18 op. att’y gen. 412 1886. the department of housing and urban',
11864:'development recorded certain obligations for public housing subsidies on an estimated basis. at the end of the fiscal year, obligations',
11865:'were found to be in excess of actual needs. it was held improper to send excess funds to the state',
11866:'agency’s operating reserve to offset the subsidy for the following year, since this amounted to using the funds for the',
11867:'needs of a subsequent year. the 9 the topic of obligating for needs of a future year arises in a',
11868:'variety of contexts and is also involved in several later sections of this chapter on delivery of materials and services',
11869:'beyond the fiscal year b.4 and b.5, multiyear contracts b.8 and b.9, and grants and cooperative agreements b.10. page 515',
11870:'gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time proper course of action was to deobligate the excess. 64',
11871:'comp. gen. 410 1985. rent on property leased by the national park service from the national park foundation could be',
11872:'paid in advance, but the lease could not cross fiscal year lines. the proposal was for the lease to run',
11873:'from may 1 through april 30 and for the full annual rent to be paid in advance on may 1.',
11874:'however, appropriations available as of may 1 could not be used for the period from october 1 through april 30',
11875:'since rent for these months constituted a need of the following fiscal year. b207215, mar. 1, 1983. any discussion of',
11876:'obligating for future years’ needs inevitably leads to the question of yearend spending. federal agencies as a fiscal year draws',
11877:'to a close are often likened to sharks on a feeding frenzy, furiously thrashing about to gobble up every appropriated',
11878:'dollar in sight before the ability to obligate those dollars is lost. the comptroller of the treasury stated the legal',
11879:'principle very simply in an early decision: “an appropriation should not be used for the purchase of an article not',
11880:'necessary for the use of a fiscal year in which ordered merely in order to use up such appropriation. this',
11881:'would be a plain violation of the law.” 8 comp. dec. 346, 348 1901. thus, where an obligation is made',
11882:'toward the end of a fiscal year and it is clear from the facts and circumstances that the need relates',
11883:'to the following fiscal year, the bona fide needs rule has been violated. the obligation is not a proper charge',
11884:'against the earlier appropriation, but must be charged against the following year’s funds. this was the result, for example, in',
11885:'1 comp. gen. 115 1921, in which an order for gasoline had been placed 3 days before the end of',
11886:'fiscal year 1921, with the gasoline to be delivered in monthly installments in fiscal year 1922. the comptroller general stated:',
11887:'“it is not difficult to understand how the need for an article of equipment, such as a typewriter, might arise',
11888:'during the fiscal year 1921 and its purchase be delayed until the latter part of june [the end of the',
11889:'fiscal year in 1921], but as to supplies that are consumed as used, such as gasoline, it can not be',
11890:'held that they were purchased to supply a need of the page 516 gao04261sp appropriations law—vol. i chapter 5 availability',
11891:'of appropriations: time fiscal year 1921 when the contract is made late in the month of june and expressly precludes',
11892:'the possibility of delivery before july 1, 1921.” id. at 118 explanatory information provided. see also 4 comp. dec. 553',
11893:'1898 cement ordered late in one fiscal year to be delivered several months into the following fiscal year.10 yet, this',
11894:'is only one side of the coin. the other side is illustrated in another passage from 8 comp. dec. at',
11895:'348: “an appropriation is just as much available to supply the needs of the [last day] of a particular year',
11896:'as any other day or time in the year.” thus, a yearend obligation perhaps raises the possibility that the agency',
11897:'is trying to “dump” its remaining funds and warrants a further look, but the timing of the obligation does not,',
11898:'in and of itself, establish anything improper. 38 comp. gen. 628, 630 1959; 6 comp. dec. 815, 818 1900. gao',
11899:'has conducted several studies of yearend spending and has consistently reported that yearend spending is not inherently more or less',
11900:'wasteful than spending at any other time of the year. in one report, gao suggested that yearend spending surges are',
11901:'really symptomatic of a larger problem—inadequate management of budget execution—and that the apportionment process could be more effectively used to',
11902:'provide the desired management. u.s. general accounting office, federal yearend spending: symptom of a larger problem, gao/pad8118 oct. 23, 1980,',
11903:'pp. 7–9.11 10 “there is no authority in an appropriation made specifically for the service of a particular fiscal year',
11904:'to enter into contracts for supplies, etc., for the service of a subsequent fiscal year, and therefore as to that',
11905:'appropriation such a contract is not properly made within that year.” 4 comp. dec. at 556. 11 other gao reports',
11906:'in this area are: u.s. general accounting office, yearend spending: reforms underway but better reporting and oversight needed, gao/aimd98185 washington,',
11907:'d.c.: july 31, 1998; federal yearend spending patterns for fiscal years 1982, 1983, and 1984, gao/afmd8575 washington, d.c.: nov. 4,',
11908:'1985; limitations on fiscal year 1981 fourth quarter obligations in certain agencies, gao/pad8243 washington, d.c.: july 16, 1982; government agencies',
11909:'need effective planning to curb unnecessary yearend spending, gao/psad8067 washington, d.c.: july 28, 1980. page 517 gao04261sp appropriations law—vol. i',
11910:'chapter 5 availability of appropriations: time gao also noted in its october 1980 report that there are several reasons for',
11911:'yearend spending, some of which are perfectly valid. for example, some programs have predictable 4th quarter surges due to cyclical',
11912:'or seasonal fund requirements. if, for example, you are administering a fire suppression program, you should expect a 4th quarter',
11913:'surge because the 4th quarter of the federal fiscal year is the major fire season in many states. gao/pad8118 at',
11914:'3. in other situations, it may be desirable to delay obligations to have funds available for emergencies that may arise',
11915:'during the year. id. at 4. in evaluating a yearend obligation, it is important to determine exactly what the need',
11916:'is from the agency’s perspective. in one case, for example, the small business administration sba awarded cooperative agreements to certain',
11917:'small business development centers on the last day of a fiscal year. the centers then provided management and technical assistance',
11918:'to small businesses, all of which would obviously be done in the following year. gao found no bona fide needs',
11919:'violation because the need, from the perspective of implementing sba’s appropriation, was merely to provide assistance to the centers, and',
11920:'there was no reason this could not be done on the last day of the year. b229873, nov. 29, 1988.',
11921:'see also b289801, dec. 30, 2002; section b.5 of this chapter. one device congress has employed to control yearend spending',
11922:'surges is legislation limiting the amount of obligations that may be incurred in the last month or 2month period or',
11923:'quarter of the fiscal year. for example, the defense department’s 1990 appropriation contained a provision limiting obligations during the last',
11924:'2 months of the fiscal year to not more than 20 percent of the total fiscal year appropriations.12 in comments',
11925:'on legislative proposals of this type, gao has pointed out that they are difficult to administer, but has supported them',
11926:'as temporary measures pending more fundamental improvements in budget execution management and procurement planning.13 in addition, there is the risk',
11927:'that limitations of this type may have the effect of simply moving the spending surges back a few months, accomplishing',
11928:'nothing. 3. prior years’ needs there are situations in which it is not only proper but mandatory to use currently',
11929:'available appropriations to satisfy a need that arose in a prior 12 pub. l. no. 101165, § 9007, 103 stat.',
11930:'1112, 1130 nov. 21, 1989. 13 e.g., b198666, may 20, 1980. page 518 gao04261sp appropriations law—vol. i chapter 5 availability',
11931:'of appropriations: time year.14 we refer to this as the “continuing need.” if a need arises during a particular fiscal',
11932:'year and the agency chooses not to satisfy it during that year, perhaps because of insufficient funds or higher priority',
11933:'needs, and the need continues to exist in the following year, the obligation to satisfy that need is properly chargeable',
11934:'to the later years funds. “an unfulfilled need of one period may well be carried forward to the next as',
11935:'a continuing need with the next periods appropriation being available for funding.” b197274, sept. 23, 1983. thus, an important corollary',
11936:'to the bona fide needs rule is that a continuing need is chargeable to funds current for the year in',
11937:'which the obligation is made, regardless of the fact that the need may have originated in a prior year. an',
11938:'illustration is b207433, sept. 16, 1983. the army contracted for a specific quantity of thermal viewers. the contract provided for',
11939:'a downward adjustment in the contract price in the case of an “underrun,” that is, if the contractor was able',
11940:'to perform at less than the contract price. after the appropriation charged with the contract had expired, the contractor incurred',
11941:'an underrun and proposed to use the excess funds to supply an additional quantity of viewers. it was undisputed that',
11942:'the need for additional viewers could be attributed to the year in which the contract was entered into, and that',
11943:'the need continued to exist. gao agreed with the army that the proper course of action was to deobligate the',
11944:'excess funds and, if the army still wished to procure them, to charge the obligation for the additional quantity to',
11945:'current years appropriations. the fact that the need arose in a prior year was immaterial. the decision, at pages 4–5,',
11946:'offered the following explanation: “certainly the army could have used underrun funds to procure additional viewers at any time during',
11947:'the period those funds remained available for obligation. also, we are of course aware that an unmet need does not',
11948:'somehow evaporate merely because the period of availability has expired. however, nothing in the bona fide needs rule suggests that',
11949:'expired appropriations may be used for an item for which a valid obligation was not incurred prior to expiration merely',
11950:'because there was a need for that item during that period …once the obligational period has 14 see also 31',
11951:'u.s.c. §1553b, which requires that obligations and adjustments properly made to closed accounts may be charged to any current appropriation,',
11952:'and section d.4 of this chapter. page 519 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time expired, the',
11953:'procurement of an increased quantity must be charged to new money, and this is not affected by the fact that',
11954:'the need for that increased quantity may in effect be a ‘continuing need’ that arose during the prior period.” another',
11955:'illustration is b226198, july 21, 1987. in late fiscal year 1986, the u.s.geological survey ordered certain microcomputer equipment, to be',
11956:'delivered in early fiscal year 1987, charging the purchase to fiscal year 1986 funds. the equipment was delivered and accepted,',
11957:'but was stolen before reaching the ordering office. the decision held that a reorder, placed in fiscal year 1987, had',
11958:'to be charged to fiscal year 1987 funds. as with the thermal viewers in b207433, the fact that the need',
11959:'for the equipment arose in 1986 was immaterial. see also b286929, apr. 25, 2001; b257617, apr. 18, 1995. in another',
11960:'case, cost overruns caused the army to delete certain items from a fiscal year 1979 procurement. the army repurchased the',
11961:'canceled items in 1981, charging 1981 appropriations. gao agreed that the repurchase was properly chargeable to 1981, rather than 1979',
11962:'funds. b206283o.m., feb. 17, 1983. the essential requirements of the “continuing need” corollary are that 1 the need, unmet in',
11963:'the year in which it arose, must continue to exist in the subsequent obligational period; 2 the incurring of an',
11964:'obligation must have been discretionary with the agency to begin with; and 3 no obligation was in fact incurred during',
11965:'the prior year. if the agency has no discretion as to the timing of an obligation for example, in situations',
11966:'where the obligation arises by operation of law, or, even in discretionary situations, if the agency has actually incurred a',
11967:'valid obligation in the prior year whether recorded or unrecorded, then the “continuing need” concept has no application and the',
11968:'obligation must be charged to the prior year. absent statutory authority, current appropriations are not available to fund an obligation',
11969:'or liability as opposed to an unmet and unobligatedfor need of a prior obligational period. if insufficient funds remain in',
11970:'the prior years’ appropriation, the agency must seek a supplemental or deficiency appropriation and must further consider the possibility that',
11971:'the antideficiency act, 31 u.s.c. § 1341a, has been violated. in an early case, for example, an agency had contracted',
11972:'for repairs to a building toward the end of fiscal year 1904. since it was clear that the page 520',
11973:'gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time repairs were needed at the time they were ordered, they',
11974:'were chargeable to fiscal year 1904 appropriations, and the exhaustion of the 1904 appropriation did not permit use of 1905',
11975:'funds. 11 comp. dec. 454 1905. see also 21 comp. dec. 822 1915. in b226801, mar. 2, 1988, gao considered',
11976:'various entitlement programs administered by the department of veterans affairs va. under these programs, the obligation arises when va determines',
11977:'eligibility through its adjudication process and must be recorded at that time. if the obligations would exceed available funds, it',
11978:'is not proper to defer the recording and charge the following year’s appropriation. since the obligations are required by law,',
11979:'overobligation would not violate the antideficiency act, but they must still be recognized and recorded when they arise. congress subsequently',
11980:'began including an administrative provision in va’s appropriation act permitting the use of appropriations for these programs to pay obligations',
11981:'required to be recorded in the last quarter of the preceding fiscal year.15 see also b287619, july 5, 2001. for',
11982:'additional cases, see 55 comp. gen. 768, 773–74 1976 current year’s appropriations not available to fund prior year’s antideficiency act',
11983:'violation; 54 comp. gen. 393, 395 1974 deficiency appropriation necessary to pay claims against exhausted appropriation; b133001, mar. 9, 1979',
11984:'fiscal year refugee assistance appropriation not available to pay for services performed in prior year; b14331, jan. 24, 1941; a76081,',
11985:'june 8, 1936 appropriations not available for past obligations unless clearly indicated by language and intent of appropriation act; b221204o.m.,',
11986:'jan. 31, 1986 meals under child nutrition program served in september of one fiscal year may not be charged to',
11987:'subsequent year’s appropriation. congressional denial of a request for a deficiency appropriation does not make current appropriations available to satisfy',
11988:'the prior year’s obligation. b114874, sept. 16, 1975 postage charges under 39 u.s.c. § 3206. 15 e.g., departments of veterans',
11989:'affairs and housing and urban development, and independent agencies appropriations act, 1990, pub. l. no. 101144, title i, 103 stat.',
11990:'839, 843–44 nov. 9, 1989; departments of veterans affairs and housing and urban development, and independent agencies appropriations act, 1997,',
11991:'pub. l. no. 104204, title i, § 105, 110 stat. 2874, 2881 sept. 26, 1996; and departments of veterans affairs',
11992:'and housing and urban development, and independent agencies appropriations act, 2002, pub. l. no.10773, title i, § 105, 115 stat.',
11993:'651, 657 nov. 26, 2001. page 521 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time 4. delivery of',
11994:'materials beyond the fiscal year when the government purchases goods or materials in one fiscal year and delivery occurs in',
11995:'whole or in part in a subsequent fiscal year, the question is whether the contract meets a bona fide need',
11996:'of the fiscal year in which it was made. this was the central legal issue in our discussion of yearend',
11997:'spending in section b.2 of this chapter, but the issue exists regardless of when in the fiscal year the contract',
11998:'is made. in this section we will explore those contracts where the agency intends to meet the needs of the',
11999:'fiscal year in which it entered into the contract. we will discuss multiyear contracts, where an agency intends to meet',
12000:'its needs for more than one fiscal year, in sections b.8 and b.9. an agency may not obligate funds when',
12001:'it is apparent from the outset that there will be no requirement until the following fiscal year. for example, it',
12002:'was found that annual appropriations obligated to fund an agreement between the general services administration gsa and the federal power',
12003:'commission fpc, whereby gsa agreed to renovate space in a federal building incident to relocation of fpc personnel, were not',
12004:'available since the relocation was not required to, and would not, take place by the end of the fiscal year,',
12005:'and because the space in question would not be made “tenantable” until the following fiscal year. b95136o.m., aug. 11, 1972.',
12006:'if deliveries are scheduled only for a subsequent fiscal year, or if contract timing effectively precludes delivery until the following',
12007:'fiscal year, one could question whether the contract was made in the earlier fiscal year only to obligate funds from',
12008:'an expiring appropriation and that the goods or materials were not intended to meet a bona fide need of that',
12009:'year. see 38 comp. gen. 628, 630 1959; 35 comp. gen. 692 1956; 33 comp. gen. 57, 60–61 1953; 21',
12010:'comp. gen. 1159 1941; 1 comp. gen. 115 1921; 27 comp. dec. 640 1921. however, the timing of delivery, while',
12011:'obviously a relevant factor, is not conclusive. there are perfectly legitimate situations in which an obligation may be incurred in',
12012:'one fiscal year with delivery to occur in a subsequent year. thus, where materials cannot be obtained in the same',
12013:'fiscal year in which they are needed and contracted for, provisions for delivery in the subsequent fiscal year do not',
12014:'violate the bona fide needs rule as long as the time intervening between contracting and delivery is not excessive and',
12015:'the procurement is not for standard commercial items readily available from other sources. 38 comp. gen. at 630. similarly, an',
12016:'agency may contract in one fiscal year for delivery in a subsequent year if the material contracted for will not',
12017:'be obtainable on the page 522 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time open market at the',
12018:'time needed for use, provided the intervening period is necessary for production or fabrication of the material. 37 comp. gen.',
12019:'155, 159 1957. if an obligation is proper when made, unforeseen delays that cause delivery or performance to extend into',
12020:'the following fiscal year will not invalidate the obligation. in one case, for example, although work under a construction contract',
12021:'was performed during the fiscal year following its execution, the comptroller general approved payment to the contractor under the original',
12022:'obligation since the agency had awarded the contract as expeditiously as possible and had made provision for the work to',
12023:'begin within the current fiscal year, but experienced a delay in obtaining certain materials the government had agreed to provide.',
12024:'1 comp. gen. 708 1922. see also 23 comp. gen. 82 1943; 20 comp. gen. 436 1941. an order or',
12025:'contract for the replacement of stock is viewed as meeting a bona fide need of the year in which the',
12026:'contract is made as long as it is intended to replace stock used in that year, even though the replacement',
12027:'items will not be used until the following year. see 44 comp. gen. 695 1965. “stock” in this context refers',
12028:'to “readily available commonuse standard items.” id. at 697. see also 73 comp. gen. 259 1994; 32 comp. gen. 436',
12029:'1953. generally, scheduling delivery for the following year would seem irrelevant. there are limits, however. gao has questioned the propriety,',
12030:'from the bona fide needs perspective, of purchases of materials carried in stock for more than a year prior to',
12031:'issuance for use. b134277, dec. 18, 1957. 5. services rendered beyond the fiscal year services procured by contract are generally',
12032:'viewed as chargeable to the appropriation current at the time the services are rendered.16 38 comp. gen. 316 1958. however,',
12033:'a need may arise in one fiscal year for services that, by their nature, cannot be separated for performance in',
12034:'separate fiscal years. the comptroller general has held that the question of whether to charge the appropriation current on the',
12035:'date the contract is made, or to charge funds current at the time the services are rendered, depends upon whether',
12036:'the services are “severable” or “entire”: 16 this section does not discuss services rendered by an employee. services provided by',
12037:'employees are chargeable to the fiscal year in which the services are rendered, regardless of whether the services are severable',
12038:'or nonseverable. e.g., 38 comp. gen. 316 1958 salaries of government employees. page 523 gao04261sp appropriations law—vol. i chapter 5',
12039:'availability of appropriations: time “the fact that the contract covers a part of two fiscal years does not necessarily mean',
12040:'that payments thereunder are for splitting between the two fiscal years involved upon the basis of services actually performed during',
12041:'each fiscal year. in fact, the general rule is that the fiscal year appropriation current at the time the contract',
12042:'is made is chargeable with payments under the contract, although performance thereunder may extend into the ensuing fiscal year.” 23',
12043:'comp. gen. 370, 371 1943. a contract that is viewed as “entire” is chargeable to the fiscal year in which',
12044:'it was made, notwithstanding that performance may have extended into the following fiscal year. the determining factor for whether services',
12045:'are severable or entire is whether they represent a single undertaking. thus, in 23 comp. gen. 370, a contract for',
12046:'the cultivation and protection of a tract of rubberbearing plants, payable on completion of the services, was chargeable against fiscal',
12047:'year funds for the year in which the contract was made. because the services necessarily covered the entire growing period,',
12048:'which extended into the following fiscal year, the comptroller general characterized them as a single undertaking, which “although extending over',
12049:'a part of two fiscal years, nevertheless was determinable both as to the services needed and the price to be',
12050:'paid therefor at the time the contract was entered into.” id. at 371. the rationale of 23 comp. gen. 370',
12051:'was applied in 59 comp. gen. 386 1980 requisition for printing accompanied by manuscript sufficient for government printing office to',
12052:'proceed with job. see, e.g., 65 comp. gen. 741 1986 contract for study and final report on psychological problems among',
12053:'vietnam veterans; b257977, nov. 15, 1995 contract for 2year intern training program since interns are required to complete entire training',
12054:'program to be eligible for noncompetitive presidential management intern appointment. see also 73 comp. gen. 77 1994 subsequent modifications to',
12055:'fish and wildlife service research work orders should be charged to the fiscal year current when the work orders were',
12056:'issued since the purpose of the research is to provide a final research report and the services under the contract',
12057:'are nonseverable. the last opinion is noteworthy because it pointed out that a limitation of funds clause does not affect',
12058:'the application of the bona fide needs rule and the severable test. 73 comp. gen. at 80. however, where the',
12059:'services are continuing and recurring in nature, the contract is severable. service contracts that are “severable” may not cross page',
12060:'524 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time fiscal year lines unless authorized by statute. 71 comp.',
12061:'gen. 428 1992; 58 comp. gen. 321, 324 1979; b192518, aug. 9, 1979; b133001, mar. 9, 1979; b187881, oct. 3,',
12062:'1977. see also b287619, july 5, 2001 tricare contractors provide ongoing services such as enrolling beneficiaries, adjudicating claims, etc., that',
12063:'are severable into components that independently provide value. most federal agencies have authority to enter into a 1year severable service',
12064:'contract, beginning at any time during the fiscal year and extending into the next fiscal year, and to obligate the',
12065:'total amount of the contract to the appropriation current at the time the agency entered into the contract.17 10 u.s.c.',
12066:'§ 2410a defense agencies; 41 u.s.c. § 253l civilian agencies; 41 u.s.c. § 253l1 comptroller general; 41 u.s.c. § 253l2',
12067:'library of congress; 41 u.s.c. § 253l3 chief administrative officer of the house of representatives; 41 u.s.c. § 253l4 congressional',
12068:'budget office. see also b259274, may 22, 1996. otherwise, the services must be charged to the fiscal years in which',
12069:'they are rendered. 65 comp. gen. at 743; 33 comp. gen. 90 1953 trucking services; 10 comp. dec. 284 1903',
12070:'contract for services of various categories of skilled laborers in such quantities and at such times as may be deemed',
12071:'necessary is severable. as stated in 33 comp. gen. at 92: “the need for current services, such as those covered',
12072:'by the contract here under consideration, arises only from day to day, or month to month, and the government cannot,',
12073:'in the absence of specific legislative authorization, be obligated for such services by any contract running beyond the fiscal year.”',
12074:'see also 35 comp. gen. 319 1955, amplified by b125444, feb. 16, 1956 gardening and window cleaning services. in addition',
12075:'to the recurring nature of the services, another factor identified in some of the decisions is whether the contractedfor services',
12076:'are viewed as personal or nonpersonal. personal services are presumptively severable by their nature and are properly chargeable to the',
12077:'fiscal year in which the services are rendered. b174226, mar. 13, 1972 performance on an evaluation team. legal services have',
12078:'been viewed as either personal or 17 for a discussion of contracts for more than 1 year, see later sections',
12079:'in this chapter on multiyear contracts b.8 and specific statutes providing for multiyear and other contracting authorities b.9. page 525',
12080:'gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time nonpersonal, depending on the nature of the work to be',
12081:'done. b122596, feb. 18, 1955; b122228, dec. 23, 1954. the distinction appears to have derived from the distinction inherent in',
12082:'5 u.s.c. § 3109, which authorizes agencies to procure services of experts or consultants by employment personal or contract nonpersonal.',
12083:'b174226, supra. in the context of applying the bona fide needs rule, however, the distinction is not particularly useful since',
12084:'it is still necessary to look at the nature of the services involved in the particular case. in other words,',
12085:'characterizing services as personal or nonpersonal does not provide you with an automatic answer. in fact, some of the more',
12086:'recent cases have merely considered the nature of the work without characterizing it as personal or nonpersonal, which would have',
12087:'added nothing to the analysis. e.g., 50 comp. gen. 589 1971 fees of attorneys contracted for under criminal justice act',
12088:'chargeable to appropriations current at time of appointment; b224702, aug. 5, 1987 contract for legal support services held severable since',
12089:'it consisted primarily of clerical tasks and required no final report or end product. a 1981 decision applied the above',
12090:'principles to agreements made by the small business administration sba with private organizations to provide technical and management assistance to',
12091:'businesses eligible for assistance under the small business act. the typical agreement covered one calendar year and crossed fiscal year',
12092:'lines. under the agreement, payment was to be made only for completed tasks and sba was under no obligation to',
12093:'place any orders, or to place all orders with any given contractor. the question was whether the “contract” was chargeable',
12094:'to the fiscal year in which it was executed. the comptroller general found that the services involved were clearly severable',
12095:'and that the agreement was not really a contract since it lacked mutuality of obligation. accordingly, sba created a contract',
12096:'obligation only when it placed a definite order, and could charge each fiscal year only with obligations incurred during that',
12097:'fiscal year. 60 comp. gen. 219 1981. the principles were reiterated in 61 comp. gen. 184 1981. in another 1981',
12098:'case, gao considered the district of columbia’s recording of obligations for social security disability medical examinations. a person seeking to',
12099:'establish eligibility for disability benefits is given an appointment for a medical examination and a purchase order is issued at',
12100:'that time. however, for a number of reasons beyond the district’s control, the examination may not take place until the',
12101:'following fiscal year for example, a person makes an application at end of fiscal year or does not page 526',
12102:'gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time show up for initial appointment. nevertheless, the need for the',
12103:'examination arises when the applicant presents his or her claim for disability benefits. the decision concluded that the obligation occurs',
12104:'when the purchase order is issued and is chargeable to that fiscal year. 60 comp. gen. 452 1981. training tends',
12105:'to be nonseverable. thus, where a training obligation is incurred in one fiscal year, the entire cost is chargeable to',
12106:'that year, regardless of the fact that performance may extend into the following year. b233243, aug. 3, 1989; b213141o.m., mar.',
12107:'29, 1984. in 70 comp. gen. 296 1991, training that began on the first day of fiscal year 1990 was',
12108:'held chargeable to 1989 appropriations where the training had been identified as a need for 1989, scheduling was beyond the',
12109:'agency’s control, and the time between procurement and performance was not excessive. if some particular training were severable it is',
12110:'not entirely clear when this might be the case, the contract could not cross fiscal year lines and payment would',
12111:'have to be apportioned between the fiscal years in which the training is actually conducted. see 34 comp. gen. 432',
12112:'1955. after a confusing start, we have determined that the type of contract does not affect the severable versus nonseverable',
12113:'distinction. for example, “levelofeffort” contracts may be severable or nonseverable. a levelofeffort contract is a type of costreimbursement contract in',
12114:'which the scope of work is defined in general terms, with the contractor being obligated to provide a specified level',
12115:'of effort e.g., a specified number of personhours for a stated time period. federal acquisition regulation, 48 c.f.r. § 16.306d2.',
12116:'the bona fide needs determination is based not on the contract type but on the nature of the work being',
12117:'performed and is, in the first instance, the responsibility of the contracting agency. b235678, july 30, 1990. a 1985 case,',
12118:'65 comp. gen. 154, had implied that all levelofeffort contracts were severable by definition id. at 156, and to that',
12119:'extent was modified by b235678. see also b277165, jan. 10, 2000 costplusfixedfee contracts are presumptively severable unless the actual nature',
12120:'of the work warrants a different conclusion. the comptroller general has noted that to some degree an agency can control',
12121:'whether services are severable or nonseverable by selecting the type of contract and crafting the statement of work. b277165, supra',
12122:'“one might reasonably conclude that the initial agency determination whether the contract is for funding purposes severable or nonseverable takes',
12123:'place roughly contemporaneously with agency selection of contract type”. page 527 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations:',
12124:'time as a final thought, there is a fairly simple test that is often helpful in determining whether a given',
12125:'service is severable or nonseverable. suppose that a service contract is to be performed half in one fiscal year and',
12126:'half in the next. suppose further that the contract is terminated at the end of the first fiscal year and',
12127:'is not renewed. what do you have? in the case of a windowcleaning contract, you have half of your windows',
12128:'clean, a benefit that is not diminished by the fact that the other half is still dirty. what you paid',
12129:'for the first half has not been wasted. these services are clearly severable. now consider a contract to conduct a',
12130:'study and prepare a final report, as in 65 comp. gen. 741 1986. if this contract is terminated halfway through,',
12131:'you essentially have nothing. the partial results of an incomplete study, while perhaps beneficial in some ethereal sense, do not',
12132:'do you very much good when what you needed was the complete study and report. or suppose the contract is',
12133:'to repair a broken frammis.18 if the repairs are not completed, certainly some work has been done but you still',
12134:'don’t have an operational frammis. the latter two examples are nonseverable. 6. replacement contracts in an early decision, the comptroller',
12135:'of the treasury was asked whether fiscal year 1902 funds, originally obligated under a contract but unexpended because of contractor',
12136:'default, could be used in the following year to continue the original object of the contract. the comptroller stated: “a',
12137:'contract was properly made within the fiscal year 1902, and it would seem that any part of the consideration of',
12138:'that contract which failed of use owing to the default of the contractor could still be used in carrying out',
12139:'the object of the original contract within the meaning of [31 u.s.c. § 1502a]. appropriations are made to be used',
12140:'and not to be defeated in their use, and it would be a narrow construction to hold that a default',
12141:'on a properly made contract would prevent the use of the appropriation for the 18 according to “harvey the pooka,”',
12142:'the word “frammis” denotes “something that, in reality, one hasn’t a clue what it does or what it is for',
12143:'…but one wants to give others the impression that he does.” the word was coined by the three stooges, and,',
12144:'to some, it is a more literate form of the word “widget.” email to “newsgroups: it.cultura.linguistica.inglese” dated january 28, 2003,',
12145:'found at http://groups.google.com/groups?q=frammis+word&hl=en&lr =&ie=utf8&selm=txrz9.54710%24yg2.1568240%40twister1.libero.it&rnum=1. page 528 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time object for which it',
12146:'was made and for carrying out which the contract was executed.” 9 comp. dec. 10, 11 1902. this marked the',
12147:'beginning of the replacement contract theory. in its traditional form, the rule is well settled that, where it becomes necessary',
12148:'to terminate a contract because of the contractor’s default, the funds obligated under the original contract are available, beyond their',
12149:'original period of obligational availability, for the purpose of engaging another contractor to complete the unfinished work. 60 comp. gen.',
12150:'591 1981; 55 comp. gen. 1351 1976; 44 comp. gen. 623 1965; 40 comp. gen. 590 1961; 32 comp. gen.',
12151:'565 1953; 2 comp. gen. 130 1922; 21 comp. dec. 107 1914; b160834, apr. 7, 1967; b105555, sept. 26, 1951;',
12152:'a22134, apr. 12, 1928. implicit in the rule is the premise that the original contract validly obligated then current funds.',
12153:'see 34 comp. gen. 239 1954. in addition, the rule is based on the notion that the default termination does',
12154:'not eliminate the bona fide need of the fiscal year in which the original contract was executed. 44 comp. gen.',
12155:'399, 401 1965. in accordance with 31 u.s.c. § 1502, amounts from the appropriation available at the time the original',
12156:'contract was entered would remain available to fund costs properly chargeable to that appropriation. see b242274, aug. 27, 1991. accordingly,',
12157:'the replacement contract seeks only to meet the agency’s preexisting and continuing need relying on the budget authority obligated by',
12158:'the original contract. in order for funds to remain available beyond expiration for a replacement contract, three conditions must be',
12159:'met: a bona fide need for the work, supplies, or services must have existed when the original contract was executed,',
12160:'and it must continue to exist up to the award of the replacement contract. e.g., 55 comp. gen. 1351, 1353',
12161:'1976; 34 comp. gen. 239, 240 1954. if a terminated contract is found to have been improperly made to fulfill',
12162:'a need of a fiscal year other than the year against which the obligation was recorded, it would also be',
12163:'improper to charge that same appropriation for obligations incident to a replacement contract. 35 comp. gen. 692 1956. in addition,',
12164:'if contracts made in a subsequent fiscal year do not satisfy a continuing need for the goods and/or services provided',
12165:'under the original contract from a prior fiscal year, then the subsequent fiscal page 529 gao04261sp appropriations law—vol. i chapter',
12166:'5 availability of appropriations: time year contracts are not replacements and those contracts are not chargeable to the prior fiscal',
12167:'year appropriation. see b242274, aug. 27, 1991. the replacement contract must not exceed the scope of the original contract. if',
12168:'it does, it is a new obligation and must be charged to funds currently available for obligation at the time',
12169:'the replacement contract is entered into. e.g., 44 comp. gen. 399 1965; b181176o.m., june 26, 1974. the replacement contract must',
12170:'be awarded within a reasonable time after termination of the original contract. e.g., 60 comp. gen. at 593. excessive delay',
12171:'raises the presumption that the original contract was not intended to meet a then existing bona fide need. the same',
12172:'result may follow if there is unwarranted delay in terminating the original contract. 32 comp. gen. 565 1953. at one',
12173:'time, the replacement contract rule was mostly but not exclusively limited to the default situation. e.g., 24 comp. gen. 555',
12174:'1945, overruled by 55 comp. gen. 1351. it has, however, been expanded. in 34 comp. gen. 239 1954, a default',
12175:'termination was found to be erroneous and was converted to a termination for convenience by agreement of the parties to',
12176:'permit settlement of the contractor’s claim for damages. the decision held that, in view of the original termination, the funds',
12177:'originally obligated were available for the timely execution of a new contract for the performance of the unfinished work.19 a',
12178:'further question in that case was whether the replacement contract rule was affected by the newly enacted 31 u.s.c. §',
12179:'1501a, which requires that contractual obligations be supported by a binding agreement in writing executed prior to expiration of the',
12180:'appropriations availability. the decision held that the original contract met these requirements. 34 comp. gen. at 241. 19 a 1981',
12181:'case, 60 comp. gen. 591, drew a distinction based on whether the awarding of the replacement contract preceded or followed',
12182:'the conversion to a termination for convenience, suggesting that the original obligation was extinguished when the replacement contract followed the',
12183:'conversion to a termination for convenience, the precise sequence involved in 34 comp. gen. 239. although 60 comp. gen. 591',
12184:'cites 34 comp. gen. 239 several times, it does not address this point. in view of later decisions where gao',
12185:'determined that an agency could award a replacement contract following a termination for convenience because of an improper award, the',
12186:'distinction regarding when the replacement contract is awarded would not appear to be relevant. see 68 comp. gen. 158 1988.',
12187:'page 530 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time in a later case, a contract for flooring',
12188:'repairs was awarded in fiscal year 1975, obligating fiscal year 1975 funds, conditioned upon a determination from the small business',
12189:'administration sba that the contractor qualified as a small business. sba found the contractor not to be a small business.',
12190:'concluding that the original award was sufficient to support an obligation under 31 u.s.c. § 1501a, the comptroller general applied',
12191:'the replacement contract rule and held that the funds obligated for the contract in fiscal year 1975 could be used',
12192:'to resolicit in fiscal year 1976. 55 comp. gen. 1351 1976. in 66 comp. gen. 625 1987, however, the comptroller',
12193:'general declined to extend the rule in a situation involving a voluntary modification that reduced the scope of a contract.',
12194:'the navy had contracted for the construction of 12 ships. the contractor encountered financial difficulties and filed for reorganization under',
12195:'chapter 11 of the bankruptcy act under which the contractor could, with court approval, reject the contract. see 11 u.s.c.',
12196:'§§ 365a and d2. to avert this possibility, the navy agreed to a contract modification that, among other things, reduced',
12197:'the number of ships to be provided from 12 to 10. the question was whether the funds originally obligated for',
12198:'the 2 ships deleted by the modification were available after expiration to fund a reprocurement. gao concluded that they were',
12199:'not because there had been no default, nor was there an actual rejection under the bankruptcy code. “[t]he modification was',
12200:'an essentially voluntary act on the part of the navy, and as such is beyond the scope of the replacement',
12201:'contract rule.” id. at 627. therefore, any replacement contract for the 2 deleted ships would have to be charged to',
12202:'appropriations current at the time it was made. cases involving the termination of erroneously or improperly awarded contracts have been',
12203:'less than consistent, although a clear direction now appears evident. the earliest decisions applied the replacement contract rule. thus, 17',
12204:'comp. gen. 1098 1938 held, without much discussion, that funds obligated by an award to a bidder subsequently determined not',
12205:'to have been the low bidder could be used for an award to the otherwise low bidder in the following',
12206:'fiscal year. in a 1953 case, a contract had to be partially canceled because the contractor’s bid had not conformed',
12207:'to the advertised specifications. gao noted that “the obligating instrument was legally defective in such a way as to render',
12208:'the contract voidable at the election of the government,” but nevertheless applied the replacement contract rule. b116131, oct. 19, 1953.',
12209:'see also b89019, may 31, 1950. page 531 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time gao’s position',
12210:'seemed to change with the enactment of 31 u.s.c. § 1501a in 1954, on the theory that a contract award',
12211:'found to be invalid did not constitute a binding agreement so as to support a recordable obligation. 38 comp. gen.',
12212:'190 1958; b118428, sept. 21, 1954, overruling b116131 and b89019. however, b116131 was at least arguably “reinstated” by b152033, may',
12213:'27, 1964, which followed both the “voidable at the election of the government” rationale and the result of b116131, without',
12214:'citing either it or the case that presumably overruled it. see also b1732442, aug. 10, 1972; b158261, mar. 9, 1966.',
12215:'this latter group of cases was in turn cited with approval in 55 comp. gen. 1351, 1353 1976. the apparent',
12216:'direction indicated by 55 comp. gen. 1351 1976 and the cases it cited was called into question by statements in',
12217:'60 comp. gen. 591 1981 to the effect that the replacement contract rule does not apply to terminations for the',
12218:'convenience of the government, whether initiated by the contracting agency or on recommendation of some other body such as gao.',
12219:'of course, the typical situation in which a replacement contract is needed following a termination for convenience is where the',
12220:'original contract is found to have been improperly awarded. an important clarification occurred in 68 comp. gen. 158 1988, which',
12221:'modified 60 comp. gen. 591 and held the replacement contract rule applicable where a contract must be terminated for convenience,',
12222:'without a prior default termination, pursuant to a determination by competent administrative or judicial authority court, board of contract appeals,',
12223:'gao that the contract award was improper. as noted previously, the bona fide need of the original contract must continue,',
12224:'and the replacement contract must be made without undue delay after the original contract is terminated and must be awarded',
12225:'on the same basis as, and be substantially similar in scope and size to, the original contract. logically and inevitably,',
12226:'the next question would be why the rule should not be the same regardless of whether the defect leading to',
12227:'termination is determined by an external reviewing body or by the contracting agency itself. it should make no difference, gao',
12228:'concluded in 70 comp. gen. 230 1991. the essence of the problem—a legal impropriety in the procurement process requiring corrective',
12229:'action—is no different. thus, the replacement contract rule, with its attendant conditions, applies where the contracting agency determines that a',
12230:'contract award was improper and terminates the contract for the convenience of the government, provided there is clear evidence that',
12231:'the award was erroneous and the agency documents its determination with appropriate findings of fact and law. id. page 532',
12232:'gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time it is worth noting that with regard to agencies that',
12233:'terminate their contracts based on improper awards, the 1991 gao decision added a fourth condition to the three articulated earlier',
12234:'in this section that determine whether funds remain available in a subsequent fiscal year for replacement contracts. in addition to',
12235:'the existence of a continuing bona fide need, a replacement contract of the same size and scope as the original,',
12236:'and the execution of the replacement without undue delay, the decision added that the original contract had to be made',
12237:'in “good faith” before an agency could use prior year appropriations to fund a replacement contract after terminating the original',
12238:'for convenience due to an improper award; 70 comp. gen. 287, 289 1991. the issue of whether an agency is',
12239:'required to avail itself of the replacement contract rule arose in a protest submitted to gao alleging the improper award',
12240:'of a contract. gao found that the agency properly awarded the contract and that, even when available, the replacement contract',
12241:'rule is not mandatory on an agency. b270723, apr. 15, 1996. the 1996 decision stated that since the replacement contract',
12242:'rule “provides a mechanism to allow agencies to administer their contract effectively when there is a reason to terminate a',
12243:'contract, its use is solely at the government’s discretion.” id. at least one federal district court has adopted the position',
12244:'that the availability of funds for a replacement contract does not require the agency to procure a replacement contract. leboeuf,',
12245:'lamb, greene & macrae, l.l.p. v. abraham, 215 f. supp. 2d 73, 81 d.d.c. 2002. see, e.g., b276334.2, oct. 27,',
12246:'1997. 7. contract modifications and amendments affecting price contract performance may extend over several years. during this time, the contract',
12247:'may be modified or amended for a variety of reasons at the instigation of either party. an amendment within the',
12248:'general scope of the contract that does not increase the contract price remains an obligation of the year in which',
12249:'the contract was executed. b68707, aug. 19, 1947. if the modification results in an increase in contract price, the question',
12250:'from the bona fide needs perspective is which fiscal year to charge with the modification. if the modification exceeds the',
12251:'general scope of the original contract, for example, by increasing the quantity of items to be delivered, the modification amounts',
12252:'to a new obligation and is chargeable to funds current at the time the modification is made. 37 comp. gen.',
12253:'861 1958; b207433, sept. 16, 1983. when the internal revenue service irs benefited from a contractual provision that allowed its',
12254:'contractor to pass page 533 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time along cost savings to the',
12255:'agency in a fiscal year subsequent to when it entered the contract, irs could not use those cost savings to',
12256:'increase the quantity of items that the contract required the contractor to deliver. b257617, apr. 18, 1995. although there was',
12257:'a bona fide need for an increased quantity of items that had continued from the fiscal year that irs entered',
12258:'the contract, it was not within the scope of the contract to increase the quantity of items delivered. if the',
12259:'contractual provision had stated that a cost savings would be passed on to irs in the form of an increased',
12260:'quantity of items delivered, then increasing the quantity would not have constituted a contract modification creating a new obligation. id.',
12261:'in the case of a contract for severable services, a modification providing for increased services must be charged to the',
12262:'fiscal year or years in which the services are rendered, applying the principles discussed in this chapter in section b.5.20',
12263:'61 comp. gen. 184 1981, aff’d upon reconsideration, b202222, aug. 2, 1983; b224702, aug. 5, 1987. see also b235086, apr.',
12264:'24, 1991. in 61 comp. gen. 184, for example, a contract to provide facilities and staff to operate a project',
12265:'camp was modified in the last month of fiscal year 1980. the modification called for work to be performed in',
12266:'fiscal year 1981. regardless of whether the contract was viewed as a service contract or a contract to provide facilities,',
12267:'the modification did not meet a bona fide need of fiscal year 1980. the modification amounted to a separate contract',
12268:'and could be charged only to fiscal year 1981 funds, notwithstanding that it purported to modify a contract properly chargeable',
12269:'to fiscal year 1980 funds. for modifications within the general scope of the original contract, the situation is a bit',
12270:'more complicated. most government contracts contain provisions which, under certain conditions, render the government liable to make equitable adjustments in',
12271:'the contract price. such liability may arise due to changes in specifications, governmentcaused delay, changed conditions, increased overhead rates, etc.',
12272:'these conditions are set out in standard contract clauses such as the “changes” clause, “government property” clause, or “negotiated overhead',
12273:'rates” clause. 20 presumably, if an agency, acting under authority to charge a 12month severable services contract that crosses fiscal',
12274:'years to the appropriation current in the first fiscal year, had charged the original obligation to the first fiscal year,',
12275:'the agency should charge the costs of the modification to that same appropriation. we discuss this authority for civilian agencies',
12276:'and 10 u.s.c. § 2410a for military departments in section b.9.a of this chapter. we found no case law addressing',
12277:'this point, however. see generally b259274, may 22, 1996 discussing 10 u.s.c. § 2410a. page 534 gao04261sp appropriations law—vol. i',
12278:'chapter 5 availability of appropriations: time because there is no way to know whether the government will actually incur liability',
12279:'under these provisions, and if so, the amount of such liability, until the occurrence of the specified conditions cf. 50',
12280:'comp. gen. 589, 591 1971, the appropriations charged with the cost of the contract are not firmly obligated to cover',
12281:'future price increases, which arise due to the operation of these clauses. nevertheless, as noted, government contracts frequently contemplate that',
12282:'performance will extend into subsequent fiscal years. when an upward price adjustment is necessitated in a subsequent year, the general',
12283:'approach is to ask whether the adjustment is attributable to an “antecedent liability”—that is, whether the government’s liability arises and',
12284:'is enforceable under a provision in the original contract. if the answer to this question is yes, then a withinscope',
12285:'price adjustment, which is requested and approved in a subsequent fiscal year, for example, under the “changes” clause, will—with one',
12286:'important qualification to be noted later—be charged against the appropriation current at the time the contract was originally executed. cases',
12287:'supporting this proposition in various contexts are 59 comp. gen. 518 1980; 23 comp. gen. 943 1944; 21 comp. gen.',
12288:'574 1941; 18 comp. gen. 363 1938; a15225, sept. 24, 1926; b146285o.m., sept. 28, 1976.21 see also b197344, aug. 21,',
12289:'1980, where supplemental work was done without issuance of a formal contract modification. this principle is occasionally referred to as',
12290:'the doctrine of “relation back.” e.g., 37 comp. gen. 861, 863 1958. the reasoning is that a change order does',
12291:'not give rise to a new liability, but instead only renders fixed and certain the amount of the government’s preexisting',
12292:'liability to adjust the contract price. since that liability arises at the time the original contract is executed, the subsequent',
12293:'price adjustment is viewed as reflecting a bona fide need of the same year in which funds were obligated for',
12294:'payment of the original contract price. the concept was stated as follows in 23 comp. gen. 943, 945 1944 explanatory',
12295:'information provided: “it is true that at the time the contract was executed it was not known that there would,',
12296:'in fact, be any changes ordered …for which the contractor would be entitled to be paid an amount in addition',
12297:'to amounts otherwise payable under the contract. also, it is true that [the changes clause] contemplates the execution of amendments',
12298:'to the contract 21 similarly, costs incurred under a termination for convenience are chargeable to the appropriation originally obligated for',
12299:'the contract. b203074, aug. 6, 1981. page 535 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time from time',
12300:'to time covering such changes. however, the fact remains that the obligations and liabilities of the parties respecting such changes',
12301:'are fixed by the terms of the original contract, and the various amendments merely render definite and liquidated the extent',
12302:'of the government’s liability in connection with such changes.” in order to avoid overobligating the original appropriation, the contracting officer',
12303:'must estimate the expected net additional obligations to insure that available appropriations are not committed to other purposes. e.g., 61',
12304:'comp. gen. 609, 612 1982; b192036, sept. 11, 1978. it is also true, however, that estimated liabilities of this type',
12305:'require constant review to ensure that appropriations do not remain encumbered in excess of the amounts that will actually be',
12306:'needed to meet the total liability under the contract. for contracts spanning lengthy periods of time, funding of within scope',
12307:'modifications involves the use of expired appropriations. as discussed later in this chapter, the balances in expired accounts prior to',
12308:'closing are available without further congressional action. not all price adjustments arising from contract modifications or amendments represent a bona',
12309:'fide need of the year in which the agreement was made. if, as noted above, the change or amendment exceeds',
12310:'the general scope of the contract, or is not made pursuant to a provision in the original contract, then it',
12311:'is not based on any antecedent liability, in which event it may obligate only appropriations current at the time it',
12312:'is issued. 56 comp. gen. 414 1977. see also 25 comp. gen. 332 1945 purported change order issued after completion',
12313:'of contract, covering work the contractor was not legally bound to do under the original contract, amounted to a new',
12314:'contract. as noted above, there is an important exception or qualification to the antecedent liability rule. in cost reimbursement contracts,',
12315:'discretionary cost increases i.e., increases that are not enforceable by the contractor, which exceed funding ceilings established by the contract,',
12316:'may be charged to funds currently available when the discretionary increase is granted by the contracting officer. 61 comp. gen.',
12317:'609 1982. it would be unreasonable, the decision pointed out, to require the contracting officer to reserve funds in anticipation',
12318:'of increases beyond the contract’s ceiling. id. at 612. changes that do not exceed the stipulated ceiling continue to be',
12319:'chargeable to funds available when the contract was originally made id. page 536 gao04261sp appropriations law—vol. i chapter 5 availability',
12320:'of appropriations: time at 611, as do amounts for final overhead in excess of the ceiling where the contractor has',
12321:'an enforceable right to those amounts id. at 612. since prior decisions such as 59 comp. gen. 518 had not',
12322:'drawn the below ceiling/aboveceiling distinction, 61 comp. gen. 609 modified them to that extent. a more recent case applying 61',
12323:'comp. gen. 609 is 65 comp. gen. 741 1986. once an appropriation account has closed generally five fiscal years after',
12324:'the expiration of obligational availability, questions of antecedent liability or relation back are no longer relevant for purposes of determining',
12325:'the availability of amounts in the closed accounts since, at that time, appropriation balances cease to be available for expenditure.',
12326:'however, questions of antecedent liability or relation back are used to determine the extent to which current funds are available',
12327:'since, once an appropriation closes, only current funds may be used, up to specified limits, for such obligations. 31 u.s.c.',
12328:'§§ 1552 and 1553. 8. multiyear contracts a. introduction any discussion of multiyear contracting must inevitably combine the bona fide',
12329:'needs rule with material from chapter 6 on the antideficiency act and from chapter 7 on obligations. the term “multiyear',
12330:'contract” has been used in a variety of situations to describe a variety of contracts touching more than one fiscal',
12331:'year. to prevent confusion, we think it is important to start by establishing a working definition. a multiyear contract, as',
12332:'we use the term in this discussion, is a contract covering the requirements, or needs, of more than one fiscal',
12333:'year.22 a contract for the needs of the current year, even though performance may extend over several years, is not',
12334:'a multiyear contract. we discuss contracts such as these, where performance may extend beyond the end of the fiscal year,',
12335:'in sections b.4 and b.5 of this chapter. thus, a contract to construct a ship that will take 3 years',
12336:'to complete is not a multiyear contract; a contract to construct one ship a year for the next 3 years',
12337:'is. 22 this is essentially the same as the definition in the federal acquisition regulation, “a contract for the purchase',
12338:'of supplies or services for more than 1, but not more than 5, program years.” 48 c.f.r. § 17.103. page',
12339:'537 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time multiyear contracting, like most things in life, has advantages',
12340:'and disadvantages. some of the potential benefits are:23 multiyear contracting can reduce costs by permitting the contractor to amortize nonrecurring',
12341:'“start up” costs over the life of the contract. without multiyear authority, the contractor may insist on recovering these costs',
12342:'under the 1year contract since there is no guarantee of getting future contracts, thus resulting in increased unit prices. multiyear',
12343:'contracting may enhance quality by reducing the uncertainty of continued government business and enabling the contractor to maintain a stable',
12344:'workforce. multiyear contracting may increase competition by enabling small businesses to compete in situations where nonrecurring startup costs would otherwise',
12345:'limit competition to larger concerns. however, the situation is not onesided. multiyear contracting authority also has potential disadvantages:24 competition may',
12346:'decrease because there will be fewer opportunities to bid. a contractor who is able to amortize startup costs in a',
12347:'multiyear contract has, in effect, a governmentfunded competitive price advantage over new contractors in subsequent solicitations. this could evolve into',
12348:'a solesource posture. being locked into a contract for several years is not always desirable, particularly where the alternative is',
12349:'to incur cancellation charges that could offset initial savings. 23 s. rep. no. 98417, at 4–8 1984. this is a',
12350:'report by the senate committee on governmental affairs on a bill s. 2300 designed to extend limited multiyear contracting authority',
12351:'to civilian agencies. that legislation was not enacted. ten years later, in 1994, congress enacted the federal acquisition streamlining act,',
12352:'permitting civilian agencies to use fiscal year appropriations to enter into contracts for as many as 5 years. pub. l.',
12353:'no. 103355, § 1072, 108 stat. 3243, 3270 oct. 13, 1994, codified at 41 u.s.c. § 254c. we discuss the',
12354:'federal acquisition streamlining act in section b.9.b of this chapter. 24 h.r. rep. no. 9771, pt. 3, at 21 1981',
12355:'report of the house committee on government operations on the 1982 defense department authorization bill. page 538 gao04261sp appropriations law—vol.',
12356:'i chapter 5 availability of appropriations: time b. multiple year and noyear appropriations an agency may engage in multiyear contracting',
12357:'only if it has 1 noyear funds or multiple year funds covering the entire term of the contract or 2',
12358:'specific statutory authority. cray research, inc. v. united states, 44 fed. cl. 327, 332 1999; 67 comp. gen. 190, 192',
12359:'1988; b171277, apr. 2, 1971 multiyear contract permissible under noyear trust fund. an agency may enter into a multiyear contract',
12360:'with fiscal year appropriations or for a term exceeding the period of availability of a multiple year appropriation only if',
12361:'it has specific statutory authority to do so. see 71 comp. gen. 428, 430 1992; b259274, may 22, 1996. most',
12362:'agencies now have some form of multiyear contracting authority, as we will describe in the next section. if an agency',
12363:'does not have specific multiyear contracting authority but enters into a multiyear contract solely under authority of a multiple year',
12364:'or noyear appropriation, the full contract amount must be obligated at the time of contract award.25 b195260, july 11, 1979.',
12365:'this is also true for revolving funds, which authorize expenditures without fiscal year limitation. revolving funds must have sufficient budget',
12366:'authority against which to record the entire amount of longterm contracts at the time of the obligation. 72 comp. gen.',
12367:'59, 61 1992. a revolving fund may not count anticipated receipts from future customer orders as budget authority. b288142, sept.',
12368:'6, 2001. see also u.s. general accounting office, the air force has incurred numerous overobligations in its industrial fund, afmd8153',
12369:'washington, d.c.: aug. 14, 1981. however, there have been some circumstances under which gao approved the incremental funding of a',
12370:'multiyear contract using noyear funds. for example, 43 comp. gen. 657 1964 involved a scheme in which funds would be',
12371:'made available, and obligated, on a yearbyyear basis, together with a “commitment” to cover maximum cancellation costs. the cancellation costs',
12372:'represented amortized startup costs, which would be adjusted downward each year. thus, funds would be available to cover the government’s',
12373:'maximum potential liability in each year. see also 62 comp. gen. 143 1983 similar approach for longterm vessel charters under',
12374:'the navy industrial fund; 51 comp. gen. 598, 604 1972 same; 48 comp. gen. 497, 502 1969 either obligational approach',
12375:'acceptable under 25 when an agency uses multiyear or other contracting authorities, such as the federal acquisition streamlining act, that',
12376:'authority may permit the agency to obligate its appropriations differently. we discuss the federal acquisition streamlining act and other examples',
12377:'of multiyear contracting authorities in section b.9 of this chapter. page 539 gao04261sp appropriations law—vol. i chapter 5 availability of',
12378:'appropriations: time revolving fund.26 as we will see later, this type of arrangement under a fiscal year appropriation presents problems.',
12379:'if an agency has neither multiple year or noyear funds, nor uses multiyear contracting authority, a multiyear contract violates statutory',
12380:'funding restrictions, including the antideficiency act prohibiting obligations in advance of an appropriation for that fiscal year, 31 u.s.c. §',
12381:'1341a27 and the bona fide needs statute prohibiting the obligation of an appropriation in advance of need, 31 u.s.c. §',
12382:'1502a. see cray research, inc. v. united states, 44 fed. cl. 327,332 1999. e.g., 67 comp. gen. 190 1988; 66',
12383:'comp. gen. 556 1987; 64 comp. gen. 359 1985; 48 comp. gen. 497 1969; 42 comp. gen. 272 1962; 27',
12384:'op. att’y gen. 584 1909. multiyear commitments were found illegal in various contexts in each of these cases, although each',
12385:'case does not necessarily discuss each funding statute. in 42 comp. gen. 272, for example, the air force, using fiscal',
12386:'year appropriations, awarded a 3year contract for aircraft maintenance, troop billeting, and base management services on wake island. because an',
12387:'agency typically incurs an obligation at the time it enters into a contract, and must charge that obligation to an',
12388:'appropriation current at that time,28 the air force contract raised two issues: 1 whether the services to be provided in',
12389:'the second and third years of the contract constituted a bona fide need of the air force’s fiscal year appropriation,',
12390:'and 2 if not, whether the air force had incurred an obligation in the first fiscal year for the needs',
12391:'of the second and third years in advance of appropriations for those 2 years. the air force contended that no',
12392:'funds were obligated at time of contract award; instead, the air force argued that it had a “requirements” contract, and',
12393:'that it incurred no obligation unless and until it issued requisitions, thereby exempting the contract from the statutory funding restrictions.',
12394:'however, the comptroller general refused to adopt this characterization of the contract. although the contractor had expressly agreed to perform',
12395:'only services for which he had received the contracting officer’s order, gao found that there was no need for an',
12396:'administrative determination that requirements existed since the contract services were “automatic incidents of the use of the air field.” id.',
12397:'at 277. only a decision 26 while 43 comp. gen. 657 had used the somewhat cryptic term “commitment,” the three',
12398:'subsequent decisions require the actual obligation of the cancellation costs. 27 we discuss the antideficiency act in chapter 6. 28',
12399:'we discuss the concept of obligations in chapter 7. page 540 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations:',
12400:'time to close the base would eliminate the requirements. consequently, the contract was found to be an unauthorized multiyear contract—the',
12401:'air force, using fiscal year appropriations, had entered into a contract for its needs of subsequent fiscal years in advance',
12402:'of appropriations for those years. c. fiscal year appropriations if an agency is contracting with fiscal year appropriations and does',
12403:'not have multiyear contracting authority, the only authorized course of action, apart from a series of separate fiscal year contracts,',
12404:'is a fiscal year contract with renewal options, with each renewal option 1 contingent on the availability of future appropriations',
12405:'and 2 to be exercised only by affirmative action on the part of the government as opposed to automatic renewal',
12406:'unless the government refuses. leiter v. united states, 271 u.s. 204 1926; 66 comp. gen. 556 1987; 36 comp. gen.',
12407:'683 1957; 33 comp. gen. 90 1953; 29 comp. gen. 91 1949; 28 comp. gen. 553 1949; b88974, nov. 10,',
12408:'1949. the inclusion of a renewal option is key; with a renewal option, the government incurs a financial obligation only',
12409:'for the fiscal year, and incurs no financial obligation for subsequent years unless and until it exercises its right to',
12410:'renew. the government records the amount of its obligation for the first fiscal year against the appropriation current at the',
12411:'time it awards the contract. the government also records amounts of obligations for future fiscal years against appropriations current at',
12412:'the time it exercises its renewal options. the mere inclusion of a contract provision conditioning the government’s obligation on future',
12413:'appropriations without also subjecting the multiyear contract to the government’s renewal option each year would be insufficient. cray research, inc.',
12414:'v. united states, 44 fed. cl. 327, 332 1999. thus, in 42 comp. gen. 272 1962, the comptroller general, while',
12415:'advising the air force that under the circumstances it could complete that particular contract, also advised that the proper course',
12416:'of action would be either to use an annual contract with renewal options or to obtain specific multiyear authority from',
12417:'congress. id. at 278. in a 1year contract with renewal options, the contractor can never be sure whether the renewal',
12418:'options will be exercised, thereby preventing the contractor from amortizing initial investment costs. to protect against this possibility, contractors occasionally',
12419:'seek a contract termination penalty equal to the unamortized balance of initial investment costs if the government fails to renew',
12420:'the contract for any fiscal year. however, the comptroller general has held that these provisions contravene the bona fide needs',
12421:'rule: page 541 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time “the theory behind such obligations covering amortized',
12422:'facility costs unrecovered at time of termination has been that a need existed during the fiscal year the contracts were',
12423:'made for the productive plant capacity represented by the new facilities which were to be built by the contractor to',
12424:'enable him to furnish the supplies called for by the contracts. after thorough consideration of the matter, we believe that',
12425:'such obligations cannot be justified on the theory of a present need for productive capacity. “ …the real effect of',
12426:'the termination liability is to obligate the commission to purchase a certain quantity of magnesium during each of five successive',
12427:'years or to pay damages for its failure to do so. in other words, the termination charges represent a part',
12428:'of the price of future, as distinguished from current, deliveries and needs under the contract, and for that reason such',
12429:'charges are not based on a current fiscal year need.” 36 comp. gen. 683, 685 1957. see also 37 comp.',
12430:'gen. 155 1957. attempts to impose penalty charges for early termination sometimes called “separate charges” have occurred in a number',
12431:'of cases involving automated data processing adp procurements. in one case, a competitor for a contract to acquire use of',
12432:'an adp system for a 65month period proposed to include a provision under which the government would be assessed a',
12433:'penalty if it failed to exercise its annual renewal options. the comptroller general noted that the penalty was clearly intended',
12434:'to recapitalize the contractor for its investment based on the full life of the system in the event the government',
12435:'did not continue using the equipment. accordingly, the comptroller general concluded that the penalty did not reasonably relate to the',
12436:'value of the equipment’s use during the fiscal year in which it would be levied. the penalty charges would, therefore,',
12437:'not be based on a bona fide need of the current fiscal year and their payment would violate statutory funding',
12438:'restrictions. 56 comp. gen. 142 1976, aff’d in part, 56 comp. gen. 505 1977. see also 56 comp. gen. 167',
12439:'1976; b190659, oct. 23, 1978. one scheme, however, has been found to be legally sufficient to permit the government to',
12440:'realize the cost savings that may accrue through multiyear contracting. the plan approved by the comptroller general in 48 comp.',
12441:'gen. 497, 501–02 1969 provided for a 1year rental contract with an page 542 gao04261sp appropriations law—vol. i chapter 5',
12442:'availability of appropriations: time d. contracts with no financial obligation option to renew each subsequent year. if the government completed',
12443:'the full rental period by continuing the contract on a yearbyyear basis, it would be entitled to have monthly rental',
12444:'credits applied during the final months of the rental period. the comptroller general noted that: “under this arrangement the government',
12445:'would not be obligated to continue the rental beyond the fiscal year in which made, or beyond any succeeding fiscal',
12446:'year, unless or until a purchase order is issued expressly continuing such rental during the following fiscal year. in effect,',
12447:'the company is proposing a 1 year rental contract with option to renew. also, under this proposal rental for any',
12448:'contract year would not exceed the lowest rental otherwise obtainable from [the contractor] for one fiscal year. we have no',
12449:'legal objection to this type of rental plan for adp equipment.” multiyear arrangements may be permissible, even without specific statutory',
12450:'authority, if they are structured in such a way that the agency, at time of contract award, incurs no financial',
12451:'obligation. without a financial obligation, the agency does not violate the antideficiency act or the bona fide needs rule. in',
12452:'63 comp. gen. 129 1983, the comptroller general considered the general services administration proposal to use 3year “multiple award schedule”',
12453:'mas contracts for federal supply schedule items. there was no commitment to order any specific quantity of items. rather, the',
12454:'commitment was for an agency with a requirement for a scheduled item to order it from the contractor if the',
12455:'contractor has offered the lowest price. if an agency found the item elsewhere for less than the contract price, it',
12456:'was free to procure the item from that other source without violating the contract. since entering into the mas contracts',
12457:'did not require the obligation of funds, there was no violation of statutory funding restrictions. obligations would occur only when',
12458:'agencies placed specific orders, presumably using funds currently available to them at the time. another example is a 1935 decision,',
12459:'a60589, july 12, 1935, which concerned a requirements contract for supplies in which no definite quantity was required to be',
12460:'purchased and under which no financial obligation would be imposed on the government until an order was placed. in order',
12461:'to retain the availability of the vendor and a fixed price, the government agreed not to purchase the items elsewhere.',
12462:'see also b259274, may 22, 1996. also, contracts that do not require the expenditure of appropriated funds are not subject',
12463:'to the same fiscal year strictures. e.g., 10 comp. gen. 407 page 543 gao04261sp appropriations law—vol. i chapter 5 availability',
12464:'of appropriations: time 1931 no legal objection to multiyear leases or contracts for the operation of concessions on federal property.',
12465:'9. specific statutes providing for multiyear and other contracting authorities a. severable services contracts as we noted at the beginning',
12466:'of our discussion of the bona fide needs rule, a fixedterm appropriation is available only “to complete contracts properly made',
12467:'within that period of availability.” see 31 u.s.c. § 1502a. for multiyear contracts, “properly made” means that the bona fide',
12468:'needs rule is satisfied if an agency has statutory authority to obligate its fiscal year funds for a contract that',
12469:'crosses fiscal years or is for multiple years. while these statutes are sometimes referred to as exceptions to the bona',
12470:'fide needs statute, it is clear that by using the phrase “contracts properly made,” the bona fide needs statute anticipates',
12471:'that congress may authorize agencies to obligate funds across fiscal years, either generally or for a particular agency or program.',
12472:'in so doing, congress defines the bona fide need in the particular statute. there are several general authorities to contract',
12473:'across a fiscal year or to enter into multiyear contracts. for example, 41 u.s.c. § 253l authorizes the heads of',
12474:'executive agencies to enter into procurement contracts for severable services for periods beginning in one fiscal year and ending in',
12475:'the next fiscal year as long as the contracts do not exceed 1 year. it permits agencies to obligate the',
12476:'total amount of the contract to appropriations of the first fiscal year. without specific statutory authority such as this, such',
12477:'action would violate the bona fide needs rule see section b.5 of this chapter. section 253l, in effect, redefines for',
12478:'an agency that elects to contract under authority of section 253l its bona fide need for the severable services for',
12479:'which it is contracting. related statutes extend this authority to various legislative branch entities.29 similarly, 10 u.s.c. § 2410a authorizes',
12480:'the military departments to use current fiscal year appropriations to finance severable service contracts into the next fiscal year for',
12481:'a total period not to exceed 1 year. gao states in b259274, may 22, 1996, that “[t]he purpose of 10',
12482:'u.s.c. § 2410a is to overcome the bona fide needs rule,” which is another way of saying that congress has',
12483:'provided the military departments with authority to properly enter into a contract not to exceed 1 year that crosses fiscal',
12484:'years. the statute specifically authorizes the departments to obligate “[f]unds made available 29 for example, the comptroller general 41 u.s.c.',
12485:'§ 253l1, library of congress 41 u.s.c. § 253l2, chief administrative officer of the house of representatives 41 u.s.c. §',
12486:'253l3, and congressional budget office 41 u.s.c. § 253l4. page 544 gao04261sp appropriations law—vol. i b. 5year contract authority chapter',
12487:'5 availability of appropriations: time for a fiscal year …for the total amount of a contract entered into” under section',
12488:'2410aa. in b259274, may 22, 1996, the air force took full advantage of this authority to maximize efficient use of',
12489:'fiscal year appropriations. the air force had intended to award a 12month severable services contract for vehicle maintenance beginning on',
12490:'september 1, 1994 fiscal year 1994, and running until august 31, 1995 fiscal year 1995. using 10 u.s.c. § 2410a,',
12491:'the air force had planned to obligate the contract against its fiscal year 1994 appropriation, until it learned that it',
12492:'did not have sufficient unobligated amounts to cover the contract. to avoid antideficiency act problems, but taking advantage of section',
12493:'2410a, the air force entered into a 4month contract, beginning september 1, 1994, and running until december 31, 1994, and',
12494:'included an option to renew the contract at that time. the option, as in the leiter decision we discussed in',
12495:'section b.8, could be exercised only by the air force, not the contractor, by affirmative written notification to the contractor.',
12496:'gao concluded that the air force’s obligation was only for 4 months, and under authority of section 2410a, it constituted',
12497:'a bona fide need of fiscal year 1994 and was properly chargeable to fiscal year 1994. also, gao found no',
12498:'antideficiency act violation. gao said that with the option to renew for 8 months, the air force had incurred “a',
12499:'naked contractual obligation that carries with it no financial exposure to the government.” 1 10 u.s.c. §§ 2306b, 2306c in',
12500:'addition to the severable services contracting authority, congress has provided executive, legislative, and judicial entities substantial authority for multiyear contracting',
12501:'for goods and services using annual funds. the military departments are authorized by 10 u.s.c. §§ 2306b and 2306c to',
12502:'enter into multiyear contracts for goods and services, respectively, for periods of not more than 5 years if certain administrative',
12503:'determinations are made. section 2306b applies not only to routine supplies, but also to the military departments acquisition of weapon',
12504:'systems and items and services associated with such systems. section 2306c, enacted in response to the wake island decision see',
12505:'67 comp. gen. 190, 193 1988, applies to such services as installation maintenance and support, maintenance or modification of aircraft',
12506:'and other complex military equipment, specialized training, and base services. sections 2306b and 2306c permit the military departments to obligate',
12507:'the entire amount of the 5year contract to the fiscal year appropriation current at the time of contract award, even',
12508:'though the goods or services procured for the final 4 years of the contract page 545 gao04261sp appropriations law—vol. i',
12509:'chapter 5 availability of appropriations: time do not constitute needs of that fiscal year. alternatively, sections 2306b and 2306c permit',
12510:'the military departments to obligate the amount for each of the 5 years against appropriations enacted for each of those',
12511:'years. if funds are not made available for continuation in a subsequent fiscal year, cancellation or termination costs may be',
12512:'paid from appropriations originally available for the contract, appropriations currently available for the same general purpose, or appropriations made specifically',
12513:'for those payments. 10 u.s.c. §§ 2306bf and 2306ce. the authority contained in sections 2306b and 2306c is also available',
12514:'to the coast guard and the national aeronautics and space administration. 10 u.s.c. § 2303. a multiyear contract entered into',
12515:'under authority of 10 u.s.c. §§ 2306b or 2306c is binding on both parties for the full term of the',
12516:'contract unless terminated as provided in the statute. see beta systems, inc. v. united states, 838 f.2d 1179, 1183 n.2',
12517:'fed. cir. 1988; beta systems, division of velcon filters, inc. v. united states, 16 cl. ct. 219, 228 1989. a',
12518:'contract under sections 2306b or 2306c must relate to the bona fide needs of the contract period as opposed to',
12519:'the need only of the first fiscal year of the contract period. the statute does not authorize the advance procurement',
12520:'of materials not needed during the 5year term of the contract. see 64 comp. gen. 163 1984; b215825o.m., nov. 7,',
12521:'1984. see also 35 comp. gen. 220 1955. 2 41 u.s.c. § 254c the federal acquisition streamlining act of 1994',
12522:'fasa and related statutes extended multiyear contracting authority with annual funds to nonmilitary departments.30 fasa authorizes an executive agency to',
12523:'enter into a multiyear contract for the acquisition of property or services for more than 1, but not more than',
12524:'5 years, if the agency makes certain administrative determinations. 41 u.s.c. § 254c. related laws extend this authority to various',
12525:'legislative branch agencies.31 through fasa and the related laws, congress has relaxed the constraints of the bona fide needs rule',
12526:'by giving agencies the flexibility to structure contracts to fund the obligations up front, incrementally, or by using the standard',
12527:'bona fide 30pub. l. no. 103355, § 1072, 108 stat. 3243, 3270 oct. 13, 1994. 31 for example, the general',
12528:'accounting office 41 u.s.c. § 253l1, library of congress 41 u.s.c. § 253l2, chief administrative office of the house of',
12529:'representatives 41 u.s.c. § 253l3, and congressional budget office 41 u.s.c. § 253l4. page 546 gao04261sp appropriations law—vol. i chapter',
12530:'5 availability of appropriations: time c. examples of agency specific multiyear contracting authorities needs rule approach. b277165, jan. 10, 2000.',
12531:'to the extent an agency elects to obligate a 5year contract incrementally, it must also obligate termination costs. the enactment',
12532:'of fasa satisfied the gao recommendation for the enactment of legislation to authorize all federal agencies to engage in limited',
12533:'multiyear procurement. see u.s. general accounting office, federal agencies should be given general multiyear contracting authority for supplies and services,',
12534:'psad7854 washington, d.c.: jan. 10, 1978. see also b214545, aug. 7, 1985 comments on proposed legislation. an example of a',
12535:'specific authority is 41 u.s.c. § 11a, which authorizes the secretary of the army “to incur obligations for fuel in',
12536:'sufficient quantities to meet the requirements for one year without regard to the current fiscal year,” and to pay from',
12537:'appropriations either for the fiscal year in which the obligation is incurred or for the ensuing fiscal year. see 28',
12538:'comp. gen. 614 1949 construing the term “fuel” in that statute to include gasoline and other petroleum fuel products. another',
12539:'example is 31 u.s.c. § 1308, which permits charges for telephone and other utility services for a time period beginning',
12540:'in one fiscal year and ending in another to be charged against appropriations current at the end of the covered',
12541:'time period. in addition, 42 u.s.c. § 2459a authorizes the national aeronautics and space administration to enter into contracts for',
12542:'certain “services provided during the fiscal year following the fiscal year in which funds are appropriated.” a further example of',
12543:'statutory authority for multiyear contracting is 40 u.s.c. § 481a3, which authorizes contracts for public utility services for periods not',
12544:'exceeding 10 years. the purpose of the statute is to enable the government to take advantage of discounts offered under',
12545:'longterm contracts. 62 comp. gen. 569, 572 1983; 35 comp. gen. 220, 222–3 1955. for purposes of applying this statute,',
12546:'the nature of the product or service and not the nature of the provider is the governing factor. 70 comp.',
12547:'gen. 44, 49 1990. thus, the statute applies to obtaining utility services from other than a “traditional” form of public',
12548:'utility. 62 comp. gen. 569. when entering into a contract under 40 u.s.c. § 481a3, the contracting agency needs to',
12549:'have sufficient budget authority only to obligate the first years costs. 62 comp. gen. at 572; 44 comp. gen. 683,',
12550:'687–88 1965. page 547 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time other examples of specific multiyear authority',
12551:'are 40 u.s.c. § 490h, which authorizes the general services administration gsa to enter into leases for periods of up',
12552:'to 20 years; 40 u.s.c. § 757c, which authorizes gsa to use the information technology fund for contracts up to',
12553:'5 years for information technology hardware, software, or services; and 10 u.s.c. § 2828d, under which the military departments may',
12554:'lease family housing united in foreign countries for periods up to 10 years, to be paid from annual appropriations. 10.',
12555:'grants and cooperative agreements the bona fide needs rule applies to all federal government activities carried out with appropriated funds,',
12556:'not just contracts, including grants and cooperative agreements. b289801, dec. 30, 2002; 73 comp. gen. 77, 78–79 1994. because of',
12557:'the fundamentally different purposes of contracts and grants, a bona fide needs analysis in the context of grants and cooperative',
12558:'agreements is different from an analysis in a contract context. the purpose of a contract is to acquire goods or',
12559:'services; the purpose of a grant is to provide financial assistance. it is for that reason that we do not',
12560:'import into a grant analysis the contract concepts of supplies and services, particularly severable and nonseverable services. in the world',
12561:'of contracts, the analysis focuses, necessarily, on the agency’s need for the goods or services for which it has contracted.',
12562:'in that context, these concepts have particular relevance. the agency’s “need” in the grant context, however, is to make a',
12563:'grant in furtherance of the goals congress hoped to achieve when it enacted the grantmaking authority. in this context, the',
12564:'agency’s “need” is to make a grant, and the grantee’s use of grant funds has no relevance in the assessment',
12565:'of agency needs. for that reason, a bona fide needs analysis in the grant context focuses on whether the grant',
12566:'was made during the period of availability of the appropriation charged and furthers the authorized purpose of program legislation. b289801,',
12567:'dec. 30, 2002. thus, where a statute authorizes grants to be made for up to 5 years to support childhood',
12568:'education, an award of a 5year grant fulfills a bona fide need in the year that the grant is awarded',
12569:'even though the 5year grant is funded with a fiscal year appropriation. id. however, where the “school improvement programs” appropriation',
12570:'for fiscal year 2002 authorizes grants only for “academic year 2002–2003,” only grants providing funding for the 2002–03 academic year',
12571:'are a bona fide need of the fiscal year 2002 appropriation, notwithstanding that the program statute authorizes grants for up',
12572:'to 4 years. id. page 548 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time the application of contract',
12573:'concepts to grants has not been without doubt. prior to our 2002 decision, the application of the severability concept to',
12574:'grants and cooperative agreements had evolved over the years. in cases where agencies did not have explicit multiyear award authority,',
12575:'gao used to treat grants and cooperative agreements in much the same way that it treated service contracts with regard',
12576:'to severability. in 64 comp. gen. 359 1985, gao held that since the national institutes of health nih grant program',
12577:'did not contemplate a required outcome or product but, instead, sought to stimulate research that would be needed year after',
12578:'year, nih was required to use appropriations available in the year that services were rendered to fund the grants. however,',
12579:'gao significantly departed from that reasoning in a 1988 decision involving small business administration sba grants. in that decision, gao',
12580:'stated that when reviewing grants or cooperative agreements in the context of the bona fide needs rule, the principle of',
12581:'severability is irrelevant. b229873, nov. 29, 1988. gao held that sba did not violate the bona fide needs rule when',
12582:'it used its current appropriation on september 30, the last day of the fiscal year, to award cooperative agreements to',
12583:'small business development centers that would use the money in the next fiscal year. gao concluded that, unlike a contract,',
12584:'a cooperative agreement satisfies the bona fide need of the agency—to financially assist the awardee—at the time sba makes the',
12585:'award to the small business development centers. id. thus, the dates on which the centers actually used the financial assistance',
12586:'are irrelevant for purposes of assessing sba’s bona fide need. id. building on the sba decision, gao held that the',
12587:'department of education could use 1year appropriations to award multiyear grants where the legislation creating the grant program explicitly stated',
12588:'that the grants could last multiple years and even in instances where the legislation did not address the duration of',
12589:'the grants. b289801, dec. 30, 2002. the determining factor is that the grants, at the time of award, further the',
12590:'objective of the grant legislation. thus, gao held that education could use its fiscal year appropriations to fund a 4year',
12591:'grant when the statute directed the agency to award grants “for periods of not more than 4 years.” see 20',
12592:'u.s.c. § 6651e2bi. furthermore, gao determined that education could use its fiscal year appropriation to provide 5 and 2year grants',
12593:'even though the statutes creating the grants were silent with regard to grant duration. see 20 u.s.c. §§ 1070a21 et',
12594:'seq. and pub. l. no. 106554, app. a, 114 stat. 2763a33–34 dec. 21, 2000. gao reasoned that, in addition to',
12595:'authorizing awards, the grant statutes conferred broad page 549 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time discretion',
12596:'on education to help ensure the accomplishment of grant objectives; and it was within that discretion for education to determine',
12597:'whether the grant objectives would best be accomplished through the use of multiyear grant awards. b289801, dec. 30, 2002. c.',
12598:'advance payments 1. the statutory prohibition advance payments in general are prohibited by 31 u.s.c. § 3324, which provides in',
12599:'part: “a except as provided in this section, a payment under a contract to provide a service or deliver an',
12600:'article for the united states government may not be more than the value of the service already provided or the',
12601:'article already delivered. “b an advance of public money may be made only if it is authorized by— “1 a',
12602:'specific appropriation or other law ….” the quoted portion of 31 u.s.c. § 3324 is derived from legislation originally enacted',
12603:'in 1823 3 stat. 723. the primary purpose of 31 u.s.c. § 3324 is to protect the government against the',
12604:'risk of nonperformance—“to preclude the possibility of loss to the government in the event a contractor—after receipt of payment— should',
12605:'fail to perform his contract or refuse or fail to refund moneys advanced.” 25 comp. gen. 834, 835 1946. see',
12606:'also 65 comp. gen. 806, 809 1986; b256692, june 22, 1995; b249006, apr. 6, 1993; b180713, apr. 10, 1974. thus,',
12607:'in its simplest terms, the statute prohibits the government from paying for goods before they have been received or for',
12608:'services before they have been rendered. the floyd acceptances, 74 u.s. 7 wall. 666, 682 1868; 10 op. att’y gen.',
12609:'288, 301 1862. the statute has been described as “so plain that construction of it is unnecessary.” 27 comp. dec.',
12610:'885, 886 1921. while that may be true if section 3324 is viewed in isolation, the situation today is nowhere',
12611:'near that simple. advance payments are now permissible in a number of situations. what we now have is a basic',
12612:'page 550 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time statutory prohibition with a network of exceptions, both',
12613:'statutory and nonstatutory, some of which are of major importance. exceptions to the advance payment prohibition may be found in',
12614:'appropriation acts or in “other law.” examples of specific exceptions are: 10 u.s.c. § 2396 for compliance with foreign laws,',
12615:'rent in foreign countries, tuition, pay, and supplies of armed forces of friendly countries; 31 u.s.c. §§ 3324b2 and d2',
12616:'pay and allowances of members of the armed forces at distant stations and publications; and 19 u.s.c. §§ 2076– 2077',
12617:'and 2080 customs service payments. numerous other statutory exceptions exist in various contexts. a major exception, discussed in this chapter,',
12618:'section c.2, permits advance and progress payments under procurement contracts in certain situations. payments to or on behalf of federal',
12619:'civilian employees and members of the uniformed service constitute another area in which exceptions exist. advances of travel and transportation',
12620:'allowances for federal civilian employees are authorized by, e.g., 5 u.s.c. §§ 5705 and 5724f. in addition, advances of allowances',
12621:'for basic housing, travel, and transportation, to members of the uniformed services for themselves and in specified situations their dependents',
12622:'are authorized by several statutes, e.g., 37 u.s.c. §§ 403a, 404b1a, 404ab, 405a, 405aa, 406a3, and 409b. prior to late',
12623:'1990, the advance payment of salary, as opposed to the various allowances discussed in the preceding paragraph, remained prohibited, with',
12624:'a limited exception in 5 u.s.c. § 5522 for certain emergency or “national interest” evacuations. this situation caused occasional hardship',
12625:'for new employees resulting from delay in receiving their first regular paycheck. in 58 comp. gen. 646 1979, gao had',
12626:'concurred in a proposal to minimize this hardship by using imprest funds to make partial salary payments to new federal',
12627:'employees early in the week following the first week of employment, but cautioned that, in view of 31 u.s.c. §',
12628:'3324, no payments could be made before the work had been performed. section 107 of the federal employees pay comparability',
12629:'act of 199032 added a new 5 u.s.c. § 5524a, authorizing agencies to make advance 32 the act is contained',
12630:'in section 529 of the fiscal year 1991 treasury, postal service, and general government appropriation act, pub. l. no. 101509,',
12631:'104 stat. 1427, 1449 nov. 5, 1990. page 551 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time payments',
12632:'of up to two pay periods of basic pay to new employees.33 advance payment of salary remains prohibited in situations',
12633:'not covered by statutory exceptions. thus, gao has advised that partial or emergency salary payments can be made if a',
12634:'salary check is lost in the mail or an electronic deposit goes astray, but must be subject to “advance payment”',
12635:'safeguards similar to those discussed in 58 comp. gen. 646. b193867.2, jan. 12, 1990 nondecision letter. similarly, gao concluded that',
12636:'the nuclear regulatory commission could reschedule its commissioners’ pay days that fall on weekends or holidays to the preceding workday,',
12637:'provided that payments made prior to the end of a pay period did not include salary applicable to days remaining',
12638:'in the pay period. b237963, june 28, 1990. tuition payments may be paid in advance. the government employees training act,',
12639:'5 u.s.c. § 4109, provides general authority for advance tuition payments for civilian employees. also, 10 u.s.c. § 2396a3 authorizes',
12640:'advance tuition payments for military personnel. prior to the enactment of these provisions, the comptroller general held that certain tuition',
12641:'payments could be made in advance. for example, legislation authorizing the coast guard to provide training for its personnel at',
12642:'private or state colleges and universities and to pay certain expenses, including tuition, was viewed as authorization by “other law”',
12643:'within the meaning of 31 u.s.c. § 3324. tuition could therefore be paid at the time of enrollment if required',
12644:'by the educational institution. 41 comp. gen. 626 1962. see also b70395, oct. 30, 1947 tuition payments by public health',
12645:'service in connection with research fellowships; b56585, may 1, 1946 tuition payments by the former veterans administration in connection with',
12646:'schooling of veterans. exceptions to the advance payment prohibition may appear in appropriation acts as well as other legislation. the',
12647:'extent of the authority conferred and its duration will of course be determined in accordance with rules applicable to construing',
12648:'appropriations language. some may be limited by duration and some may be limited to a particular agency. also, the bona',
12649:'fide needs rule applies. in one case, a fiscal year 1955 appropriation for an indian education program included authority for',
12650:'the bureau of indian affairs to make certain payments in advance. the comptroller general held that the funds could be',
12651:'obligated only for the 33 under the congressional budget act of 1974, the authority is effective only to the extent',
12652:'provided for in advance in appropriation acts. see pub. l. no. 101509, § 301. page 552 gao04261sp appropriations law—vol. i',
12653:'chapter 5 availability of appropriations: time bona fide needs of the period for which appropriated. therefore, the advance payment authority',
12654:'was limited to the portion of the program to be furnished during fiscal year 1955 and could not operate to',
12655:'extend the period of availability of the appropriation, that is, could not be used to pay for portions of the',
12656:'program extending into fiscal year 1956. 34 comp. gen. 432 1955.34 this principle would be equally applicable to advance payment',
12657:'authority contained in permanent legislation. if a given situation does not fall within any existing exception, the statutory prohibition will',
12658:'apply. e.g., 65 comp. gen. 806 1986 advance payment for published advertisement; 64 comp. gen. 710 1985 advance payments under',
12659:'contract for office equipment maintenance found to violate statute notwithstanding federal supply schedule contract language to the contrary. the statutory',
12660:'prohibition on the advance payment of public funds, 31 u.s.c. § 3324, does not apply to grants. since assistance awards',
12661:'are made to assist authorized recipients and are not primarily for the purpose of obtaining goods or services for the',
12662:'government, the policy behind the advance payment prohibition has less force in the case of assistance awards than in the',
12663:'case of procurement contracts. accordingly, it has been held that 31 u.s.c. § 3324 does not preclude advance funding in',
12664:'authorized grant relationships. unless restricted by the program legislation of the applicable appropriation, the authority to make grants is sufficient',
12665:'to satisfy the requirements of 31 u.s.c. § 3324. 60 comp. gen. 208 1981; 59 comp. gen. 424 1980; 41',
12666:'comp. gen. 394 1961. as stated in 60 comp. gen. 209, “[t]he policy of payment upon receipt of goods or',
12667:'services is simply inconsistent with assistance relationships where the government does not receive anything in the usual sense.” these concepts',
12668:'are further explored in chapter 10.35 in 70 comp. gen. 701 1991, the comptroller general held that payments by the',
12669:'bureau of indian affairs for mcdonald’s gift certificates and movie 34 this case is cited for the limited purpose of',
12670:'illustrating that advance payment authority does not negate application of the bona fide needs rule. it does not illustrate the',
12671:'general application of the bona fide needs rule to training obligations. on the contrary, as noted earlier in this chapter,',
12672:'most training tends to be nonseverable. 35 although grantees are not subject to the prohibition against advance payments, under the',
12673:'cash management improvement act of 1990, they may not draw money out of the treasury in advance of need. pub.',
12674:'l. no. 101453, 104 stat. 1058, oct. 24, 1990. page 553 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations:',
12675:'time tickets, which would be redeemed at a later date for their full value, would not violate 31 u.s.c. §',
12676:'3324, provided that adequate administrative safeguards for the control of the certificates and tickets were maintained, the purchase of the',
12677:'certificates was in the government’s interest, and the certificates and tickets were readily redeemable for cash. 2. government procurement contracts',
12678:'a. background first, it is important to define a few terms. we take our definitions from the federal acquisition regulation',
12679:'far, 48 c.f.r. § 32.102. in the context of government contracting, “advance payments” are payments to a prime contractor “before,',
12680:'in anticipation of, and for the purpose of complete performance under one or more contracts.” advance payments are not measured',
12681:'by performance. “progress payments” are payments made to the contractor as work progresses on the contract. they may be based',
12682:'on costs incurred by the contractor or a percentage or stage of completion. “partial payments” are payments “for accepted supplies',
12683:'and services that are only a part of the contract requirements.” advance payments and progress payments based on costs incurred',
12684:'are regarded as forms of “contract financing.” partial payments and progress payments based on a percentage or stage of completion',
12685:'are viewed simply as payment methods. the extent to which various forms of contract financing are permissible under the advance',
12686:'payment statute was the subject of many early decisions. in one early case, the advance payment statute was applied to',
12687:'a question regarding the legality of government partial progress payments for materials that had not been delivered. the comptroller general',
12688:'held that the statute does not necessarily require withholding of payment under a contract until it has been entirely completed',
12689:'and all deliverables have been provided to the government. the statute “was not intended to prevent a partial payment in',
12690:'any case in which the amount of such payment had been actually earned by the contractor and the united states',
12691:'had received an equivalent therefor.” 1 comp. gen. 143, 145 1921. the partial payments proposed in that case were not',
12692:'in excess of the amount actually expended by the contractor in performance of the contract, and because the contract provided',
12693:'that title to all property on which payment was made vested in the government, the government would receive the corresponding',
12694:'benefit. partial payments in advance of complete delivery were therefore permissible. page 554 gao04261sp appropriations law—vol. i chapter 5 availability',
12695:'of appropriations: time in 20 comp. gen. 917 1941, the comptroller general approved a proposed contract amendment to provide for',
12696:'partial payment of the contract price prior to delivery to the government on the condition that title to the materials',
12697:'would pass to the government at the time of payment. from these and similar cases, a rule evolved, applied both',
12698:'by the accounting officers and by the attorney general, that partial payments for equipment or land made in advance of',
12699:'their delivery into the actual possession of the united states would not violate the advance payment statute if title therein',
12700:'had vested in the government at the time of payment, or if the equipment or land was impressed with a',
12701:'valid lien in favor of the united states in an amount at least equal to the payment. 28 comp. gen.',
12702:'468 1949; 20 comp. gen. 917 1941.36 applying this rule, gao has approved the payment of “earnest money” under a',
12703:'contract for the sale of real estate to the government. the arrangement was found sufficient to protect the government’s interests',
12704:'because the contract a vested equitable title in the government prior to the vesting of legal title, which remained in',
12705:'the seller only to secure payment of the purchase price, and b obligated the seller to deliver title insurance commitment.',
12706:'34 comp. gen. 659 1955. b. contract financing “contract financing payment” is defined by the federal acquisition regulation far as',
12707:'an authorized government disbursement of moneys to a contractor prior to acceptance of supplies or services by the government. such',
12708:'payments include: advance payments; performancebased payments; commercial advance and interim payments; certain costbased progress payments; certain percentage or stageofcompletionbased progress',
12709:'payments; and interim payments under certain cost reimbursement contracts. 48 c.f.r. § 32.001. “advance payments” are payments made to a',
12710:'prime contractor before, in anticipation of, and for the purpose of complete performance under one or more contracts. such payments',
12711:'are not measured by performance. 48 c.f.r. § 32.102a. “progress payments based on costs” are made on the basis of',
12712:'costs incurred by the contractor as work progresses under the contract. 48 c.f.r. § 32.102b. progress payments based on percentage',
12713:'or stage of completion are to be made under agency procedures that ensure that payments are commensurate with the work',
12714:'36 some other cases in this evolution are: 17 comp. dec. 894 1911; 17 comp. dec. 231 1910; 29 op.',
12715:'att’y gen. 46 1911; 20 op. att’y gen. 746 1894; 18 op. att’y gen. 105 1885. page 555 gao04261sp appropriations',
12716:'law—vol. i chapter 5 availability of appropriations: time accomplished that meets the quality standards established under the contract. 48 c.f.r.',
12717:'§ 32.102e. the major laws governing acquisition by most agencies of the executive branch of government have for over a',
12718:'half century included provisions relating to agencies making advance and progress payments under contracts for supplies or services. see 10',
12719:'u.s.c. § 2307 department of defense and 41 u.s.c. § 255 most civilian agencies. both provisions permit agencies to make',
12720:'advance, partial, progress, or other payments under contracts for property or services that do not exceed the unpaid contract price.',
12721:'within their discretion, the agencies may include in bid solicitations a provision limiting advance or progress payments to small business',
12722:'concerns. 10 u.s.c. § 2307ac; 41 u.s.c. § 255ac. the comptroller general views the authority conferred by both these provisions',
12723:'to apply to both advertised and negotiated procurements. b158487, apr. 4, 1966. both provisions provide that whenever practicable, payments are',
12724:'to be made based on 1 performance, using quantifiable methods such as delivery of acceptable items, work measurement, or statistical',
12725:'process controls; 2 accomplishment of events defined in a program management plan; or 3 other quantifiable measures of results. 10',
12726:'u.s.c. § 2307b; 41 u.s.c. § 255b. both provisions establish conditions for progress payments for work in process and limit',
12727:'such payments to 80 percent of the contract price for contracts over $25,000. 10 u.s.c. § 2307e; 41 u.s.c. §',
12728:'255e. both provisions provide that advance payments may be made only upon adequate security and a determination by the agency',
12729:'head that such would be in the public interest. such security interest may be in the form of a lien',
12730:'in favor of the government on the property contracted for, on the balance in an account in which such payments',
12731:'are deposited, and such of the property acquired for performance of the contract as agreed to by the parties. the',
12732:'lien is to be paramount to all other liens and effective immediately upon the first advance of funds without filing,',
12733:'notice, or any other action by the government. 10 u.s.c. § 2307d; 41 u.s.c. § 255d. advance payments for commercial',
12734:'items may not exceed 15 percent of the contract price in advance of any performance of work under the contract.',
12735:'10 u.s.c. § 2307f2; 41 u.s.c. § 255f2. section 2307h provides that if a contract calls for advance, partial, progress,',
12736:'or other payments and provides for title to property to vest in the united states, the title vests in accordance',
12737:'with the terms of the contract, regardless of any security page 556 gao04261sp appropriations law—vol. i chapter 5 availability of',
12738:'appropriations: time interest in the property that is asserted before or after entering into the contract. section 2307g of title',
12739:'10 of the united states code contains special provisions relating to navy contracts, for example, that progress payments under contracts',
12740:'for repair, maintenance, or overhaul of a naval vessel may not be less than 95 percent for small businesses and',
12741:'90 percent for any other business. generally speaking, the government’s preference is that the contractor be able to perform using',
12742:'private financing, that is, the contractor’s own resources or financing obtained in the private market. 48 c.f.r. § 32.106. the',
12743:'advance payment authority of 10 u.s.c. § 2307 and 41 u.s.c. § 255 is a financing tool to be used',
12744:'sparingly. it is considered the least preferred method of contract financing. 48 c.f.r. §§ 32.106 and 32.402b; 57 comp. gen.',
12745:'89, 94 1977. however, the need for government assistance in various situations has long been recognized. in this context, government',
12746:'contracting, while primarily intended to serve the government’s needs, is also designed to foster a variety of social and economic',
12747:'objectives. the far prescribes policies and procedures for agencies to apply in using contract financing. 48 c.f.r. pt. 32. for',
12748:'example, subparts 32.1 and 32.2 provide guidance on the use of such authority when purchasing noncommercial and commercial items, respectively.',
12749:'subpart 32.4 provides guidance on the use of advance payment authority when contracting for noncommercial items. subpart 32.5 provides guidance',
12750:'on the use of progress payments based on cost, and subpart 32.10 provides guidance on the use of performancebased payments',
12751:'for noncommercial items. various provisions of the far elaborate further on the statutory requirements with respect to adequate security for',
12752:'advance payments. see, e.g., 48 c.f.r. §§ 32.2024, 32.4093. application for advance payments under contracts to acquire noncommercial items may',
12753:'be made before or after the award of the contract under 48 c.f.r. § 32.408.37 security requirements may vary to',
12754:'fit the circumstances of the particular case. 48 c.f.r. § 32.4093d. in b214446, oct. 29, 1984, gao considered a proposal',
12755:'to certify payment before the services were rendered. the check 37 short of following these procedures, a bid conditioned on',
12756:'receipt of advance payments at variance with the terms of the solicitation may be rejected as nonresponsive. 57 comp. gen.',
12757:'89 1977; b205088, oct. 28, 1981; b197471.2, aug. 14, 1981. page 557 gao04261sp appropriations law—vol. i chapter 5 availability of',
12758:'appropriations: time would be held in escrow under the government’s control until contract obligations were met, at which time it',
12759:'would be released to the contractor. this arrangement was deemed adequate for purposes of 41 u.s.c. § 255. in an',
12760:'earlier case, gao declined approval of a “purchase order draft” procedure, which called for the government to send a blank',
12761:'check to the supplier upon placing an order. the supplier was to fill in the check for the actual amount',
12762:'due, not to exceed a sum specified on the check, thereby effecting immediate payment and eliminating the need for the',
12763:'supplier to bill the government. gao concluded that an agency head could not reasonably find that this plan would provide',
12764:'adequate security for the government. b158873, apr. 27, 1966. in b288013, dec. 11, 2001, a case involving whether the department',
12765:'of defense could make payment of membership fees to a private fitness center at the beginning of each option year,',
12766:'gao found that permitting membership transfers did not provide adequate security to the government to justify an advance payment. advance',
12767:'payments are also authorized under public law 85804,38 50 u.s.c. §§ 1431–1435. this law permits agencies designated by the president',
12768:'to enter into contracts, or to modify or amend existing contracts, and to make advance payments on those contracts, “without',
12769:'regard to other provisions of law relating to the making, performance, amendment, or modification of contracts, whenever [the president] deems',
12770:'that such action would facilitate the national defense.” 50 u.s.c. § 1431. agencies authorized to utilize public law 85804 are',
12771:'listed in executive order no. 10789, nov. 14, 1958, as amended reprinted as note following 50 u.s.c. § 1431. the',
12772:'far subpart on advance payments includes provisions addressing public law 85804, which applies only during a declared national emergency. 50',
12773:'u.s.c. § 1435.39 progress payments, where authorized, are made periodically based on costs incurred, with the total not to exceed',
12774:'80 percent of the total contract price. 48 c.f.r. §§ 32.5011 and 52.23216 required contract clause for fixedprice 38 pub.',
12775:'l. no. 85804, 72 stat. 972 aug. 28, 1958. 39 the national emergencies act, enacted in 1976, provided that powers',
12776:'and authorities resulting from the existence of any national emergency still in effect on september 14, 1976, were to terminate',
12777:'2 years from that date. 50 u.s.c. § 1601. specifically, the national emergency declared by president truman in 1950 for',
12778:'the korean conflict had never been revoked. however, 50 u.s.c. § 1651 makes the termination inapplicable with respect to certain',
12779:'provisions of law, one of which is public law 85804. thus, for purposes of public law 85804, the korean war',
12780:'has never ended. this is discussed in more detail in b193687, aug. 22, 1979. page 558 gao04261sp appropriations law—vol. i',
12781:'chapter 5 availability of appropriations: time contracts. in an incrementally funded fixedprice contract, gao has construed “total contract price” as',
12782:'the price for complete performance rather than the amount already allotted to the contract, provided that payment may not exceed',
12783:'the total amount allotted. 59 comp. gen. 526 1980. see also 48 c.f.r. § 32.5013. a key condition where costbased',
12784:'progress payments are authorized is the vesting in the government of title to work in process and certain other property',
12785:'allocable to the contract. 48 c.f.r. §§ 32.50314 and 52.23216. these title provisions are an outgrowth of the case law',
12786:'noted earlier in this section. the nature of the government’s interest under this titlevesting provision has produced disagreement among the',
12787:'courts. one view is that title means full, absolute title, which cannot be defeated by subsequent liens. in re reynolds',
12788:'manufacturing co., 68 b.r. 219 bankr. w.d. penn. 1986; in re denalco corp., 51 b.r. 77 bankr. n.d. ill. 1985;',
12789:'in re economy cab and tool co., 47 b.r. 708 bankr. d. minn. 1985; in re american pouch foods, inc.,',
12790:'30 b.r. 1015 bankr. n.d. ill. 1983, aff’d, 769 f.2d 1190 7th cir., cert. denied, 475 u.s. 1082 1985; mcdonnell',
12791:'douglas corp. v. director of revenue, 945 s.w.2d 437 mo. 1997. see also in re wincom corp., 76 b.r. 1',
12792:'bankr. d. mass. 1987, reaching the same result. another view is that the titlevesting provision gives the government a security',
12793:'interest in the form of a lien relative to progress payments identified with specific property, paramount to the liens of',
12794:'general creditors. united states v. dominicci, 899 f. supp. 42 d.p.r. 1995; united states v. hartec enterprises, inc., 967 f.2d',
12795:'130 5th cir. 1992; fairchild industries, inc. v. united states, 71 f.3d 868 fed. cir. 1995; marine midland bank v.',
12796:'united states, 687 f.2d 395 ct. cl. 1982, cert. denied, 460 u.s. 1037 1983; welco industries, inc. v. united states,',
12797:'8 cl. ct. 303 1985, aff’d mem., 790 f.2d 90 fed. cir. 1986.40 the american pouch and marine midland decisions,',
12798:'while reaching different conclusions, contain detailed discussions of the evolution of contract financing in relation to the advance payment statute.',
12799:'40 under the lien theory, however, it has also been held that the government’s interest under the titlevesting provision will',
12800:'not be paramount to perfected security interests of other creditors where the government’s progress payments have not been used to',
12801:'put value in the specific property involved. first national bank of geneva v. united states, 13 cl. ct. 385 1987.',
12802:'page 559 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time c. payment under a strict interpretation of 31',
12803:'u.s.c. § 3324 standing alone, payment could not be made until property being acquired was actually received and accepted by',
12804:'the government. thus, in one early case, a supply contract provided for payment “for articles delivered and accepted” and for',
12805:'the contractor to retain responsibility for the supplies or materials until they were actually in the possession of a government',
12806:'representative at their destination. the comptroller general held that payments on the basis of vouchers or invoices supported by evidence',
12807:'of shipment only, without evidence of arrival of the supplies at the destination and without assurance of receipt or acceptance',
12808:'by the government, would be unauthorized. 20 comp. gen. 230 1940. as with the forms of contract financing discussed above,',
12809:'the enactment of 10 u.s.c. § 2307 and 41 u.s.c. § 255 permitted more latitude in payment procedures. in view',
12810:'of this statutory authority, the comptroller general, in b158487, apr. 4, 1966, approved an advance payment procedure under which the',
12811:'general services administration gsa would make payments on direct delivery vouchers prior to the receipt of “receiving reports” from the',
12812:'consignees. the proposal was designed to effect savings to the government by enabling gsa to take advantage of prompt payment',
12813:'discounts.41 gao’s approval was conditioned on compliance with the conditions specified in 41 u.s.c. § 255 that advance payment be',
12814:'in the public interest and that adequate security be provided. gao has since approved similar accelerated payment or “fast pay”',
12815:'procedures for other agencies in b155253, mar. 20, 1968 defense department and b155253, aug. 20, 1969 federal aviation administration, and',
12816:'reaffirmed them for gsa in 60 comp. gen. 602 1981. see also b279620, mar. 31, 1998, for an extensive discussion',
12817:'of the background of, and adequate controls required for, fast pay. the federal acquisition regulation provides guidance in using fast',
12818:'payment procedures in 48 c.f.r. subpt. 13.4. an agency may pay for supplies based on the contractor’s submission of an',
12819:'invoice under, among others, the following conditions: 41 for the method of determining the correct date of payment for prompt',
12820:'payment discount purposes, see foster co. v. united states, 128 ct. cl. 291 1954; 61 comp. gen. 166 1981; b214446,',
12821:'oct. 29, 1984; b107826, july 29, 1954. page 560 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time the',
12822:'individual order does not exceed $25,000. agencies have discretionary authority to set higher limits for specified items or activities. geographical',
12823:'separation and lack of adequate communications facilities between receiving and disbursing activities make it impractical to make timely payment based',
12824:'on evidence of acceptance. title vests in the government upon delivery to a post office or common carrier or, if',
12825:'shipment is by means other than postal service or common carrier, upon receipt by the government. the contractor agrees to',
12826:'repair, replace, or otherwise correct any items not received at destination, damaged in transit, or not conforming to purchase requirements.',
12827:'the invoice is the contractor’s representation that the goods have been delivered to a post office, common carrier, or point',
12828:'of first receipt by the government. accelerated payment procedures should have adequate internal controls. gao’s recommended controls are outlined in',
12829:'60 comp. gen. 602 1981 and b205868, june 14, 1982. fast pay procedures should be subject to monetary ceilings now',
12830:'required by the far, limited to contractors which have an ongoing relationship with the agency, and reviewed periodically to ensure',
12831:'that benefits outweigh costs. the agency must keep records adequate to determine that the agency is getting what it pays',
12832:'for. the system should permit the timely discovery of discrepancies and require prompt followup action. gao has also recommended that',
12833:'an agency test the procedure before agencywide implementation. b205868, supra at 3. it has also been held that the use',
12834:'of imprest or petty cash funds to purchase supplies under c.o.d. [cash on delivery] procedures does not violate 31 u.s.c.',
12835:'§ 3324, even where payment is made prior to examination of the shipment. 32 comp. gen. 563 1953.42 42 the',
12836:'decision refers to something called “joint regulations for small purchases utilizing imprest funds.” this was a regulation, issued jointly by',
12837:'gao, gsa, and the treasury department, and published at 31 comp. gen. 768 1952. it was rescinded in 1959. page',
12838:'561 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time another fast pay issue was discussed in b203993o.m., july',
12839:'12, 1982, in which gao’s general counsel advised the gao finance office that it could pay the invoice amount, without',
12840:'the need for further verification, if goods are shipped “f.o.b. [freight on board] origin” and the difference between the estimated',
12841:'price in the purchase order and the amount shown on the invoice is based solely on transportation costs. any discrepancy',
12842:'regarding the transportation costs could be determined and adjusted through postaudit procedures under 31 u.s.c. § 3726. this would not',
12843:'apply to goods shipped “f.o.b. destination” because transportation charges are included as part of the purchase price. as a general',
12844:'proposition, since fast pay procedures permit the agency to dispense with prepayment voucher audits, gao’s approval of fast pay procedures',
12845:'has been based on the assumption that the agency would conduct 100 percent postpayment audits. in 67 comp. gen. 194',
12846:'1988, gao approved in concept a gsa proposal to combine fast pay procedures with the use of statistical sampling in',
12847:'postaudit for utility invoices. “we see no reason why these two techniques cannot be combined in appropriate circumstances if they',
12848:'result in economies and adequately protect the interests of the government.” id. at 199. however, gao found that the specific',
12849:'proposal did not provide adequate controls. gsa modified its proposal, and the comptroller general approved it in 68 comp. gen.',
12850:'618 1989. 3. lease and rental agreements the advance payment statute has been consistently construed as applicable to lease or',
12851:'rental agreements as well as purchases, and applies with respect to both real and personal property. 18 comp. gen. 839',
12852:'1939; 3 comp. gen. 542 1924; b188166, june 3, 1977. thus, when the government acquires land by leasing, payments must',
12853:'be made “in arrears” unless the applicable appropriation act or other law provides an exemption from 31 u.s.c. § 3324.',
12854:'19 comp. gen. 758, 760 1940. the federal acquisition regulation advance payment provisions do not apply to rent. 48 c.f.r.',
12855:'§ 32.404a1. in 57 comp. gen. 89 1977, the comptroller general held that a leasing arrangement of telephone equipment called',
12856:'“tier pricing,” under which the government would be obligated to pay the contractor’s entire capital cost at the outset of',
12857:'the lease, would violate 31 u.s.c. § 3324. see also 58 comp. gen. 29 1978. page 562 gao04261sp appropriations law—vol.',
12858:'i chapter 5 availability of appropriations: time the advance payment of annual rent on property leased from the national park',
12859:'foundation, a statutorily created charitable nonprofit organization, was found permissible in b207215, mar. 1, 1983, based on the “unique status”',
12860:'of the lessor. certain longterm lease/rental agreements may present more complicated problems in that they may involve not only 31',
12861:'u.s.c. § 3324 but also the antideficiency act, 31 u.s.c. § 1341. since appropriations are made only for the bona',
12862:'fide needs of a particular fiscal year, and since a lease purporting to bind the government for more than one',
12863:'fiscal year would necessarily include the needs of future years, such a lease would be contrary to the antideficiency act',
12864:'prohibition against contracting for any purpose in advance of appropriations made for such purpose. thus, a lease agreement for the',
12865:'rental of nitrogen gas cylinders for a 25year period, the full rental price to be paid in the first year,',
12866:'would violate both statutes. 37 comp. gen. 60 1957. a contractual arrangement on an annual basis with an option in',
12867:'the government to renew from year to year was seen as the only way to accomplish the desired objective. id.',
12868:'at 62. see also 19 comp. gen. 758 1940. 4. publications advance payment is authorized for “charges for a publication',
12869:'printed or recorded in any way for the auditory or visual use of the agency.” 31 u.s.c. § 3324d2. the',
12870:'original exemption for publications was enacted in 1930 46 stat. 580 june 12, 1930 and amended in 1961 pub. l.',
12871:'no. 8791, 75 stat. 211 july 20, 1961. it authorized advance payments for “subscriptions or other charges for newspapers, magazines,',
12872:'periodicals, and other publications for official use.” prior to 1974, a seemingly endless stream of cases arose over the meaning',
12873:'of the terms “publications” or “other publications” as used page 563 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations:',
12874:'time either in the general exemption or in specific appropriation acts.43 based on judicial precedent, gao construed the terms to',
12875:'mean publications in the customary and commonly understood sense of the word, that is, books, pamphlets, newspapers, periodicals, or prints.',
12876:'b125979, june 14, 1957. the exemption was also held to include other types of “visual” material such as microfilm products,',
12877:'41 comp. gen. 211 1961; 35millimeter slides 48 comp. gen. 784 1969; cdrom technical databases, online databases that include technical',
12878:'articles updated daily, and a newsletter b256692, june 22, 1995. however, the term “publications” was held not to include items',
12879:'made to be heard rather than read, such as phonograph records 21 comp. gen. 524 1941; b125979, june 14, 1957',
12880:'or taperecorded material 46 comp. gen. 394 1966; b137516, oct. 28, 1958. in 35 comp. gen. 404 1956, the use',
12881:'of advance payments for the procurement of books through “book club” facilities was held permissible.44 in 1974, congress resolved the',
12882:'problems over the interpretation of “other publications” by enacting legislation to codify some of the gao decisions and modify others,',
12883:'by defining “other publications” as including “any publication printed, microfilmed, photocopied, or magnetically or otherwise recorded for auditory or visual',
12884:'usage” pub. l. no. 93534, 88 stat. 1731 dec. 22, 1974. this was condensed into the present version of 31',
12885:'u.s.c. § 3324d2 when title 31 was recodified in 1982. a 1978 decision considered the question of whether a microfilm',
12886:'library could be acquired under a lease/rental arrangement or whether the advance payments were authorized only where the government actually',
12887:'purchased the library. the comptroller general concluded that in the 43 the 1930 version of the exemption authorized advance payment',
12888:'only for “newspapers, magazines, and other periodicals,” although a few agencies had broader authority under agencyspecific legislation. for agencies subject',
12889:'to the quoted language, the sole issue in several decisions was whether a given publication could also be regarded as',
12890:'a “periodical” and thus within the statute. e.g., 37 comp. gen. 720 1958; 17 comp. gen. 455 1937; a90102, sept.',
12891:'3, 1938. the 1961 amendment expanded the authority to include “other publications,” rendering these decisions obsolete. in addition, the 1974',
12892:'legislation discussed in the text further expanded the definition of “publication.” thus, most pre1974 decisions in this area are wholly',
12893:'or partly obsolete; their continuing validity must be assessed in light of the present statutory language. 44 this decision originally',
12894:'applied only to the former veterans administration, which had specific authority. it did not apply to agencies subject to the',
12895:'thenexisting version of the general exemption since the books were not “periodicals.” this part of the decision should now be',
12896:'disregarded see prior footnote, and the holding in 35 comp. gen. 404 would now apply to any agency which can',
12897:'justify the need. page 564 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time absence of statutory language or',
12898:'evidence of legislative intent to the contrary, there is no meaningful difference between the purchase and rental of publications needed',
12899:'by the government, and that the rental or leasing of a microfilm library for official government use fell within the',
12900:'purview of the publications exemption. 57 comp. gen. 583 1978. however, advance payments for items of equipment necessary for use',
12901:'in conjunction with a microfilm library are still prohibited. b188166, june 3, 1977. the cited decision, although not clear from',
12902:'the text itself, dealt with reader/printers. more recent decisions have construed the publications exemption found in 31 u.s.c. § 3324d2',
12903:'as permitting advance payment for coupons to be used for the purchase of articles from medical journals and redeemable for',
12904:'cash if unused 67 comp. gen. 491 1988; verification reports of physicians’ board certifications b231673, aug. 8, 1988; and hospital',
12905:'evaluation reports based on data submitted by participating government hospitals and including, as part of the subscription price, a laboratory',
12906:'kit for use in obtaining the data required for the reports, the kit being regarded as “a part of the',
12907:'publication process” b210719, dec. 23, 1983. in b256692, june 22, 1995, the comptroller general held that the centers for disease',
12908:'control and prevention cdc could not, under 31 u.s.c. § 3324d2, make an advance payment for telephonic support services offered',
12909:'as part of a technical support package for computer software products. the telephonic support did not constitute a publication under',
12910:'section 3324d2, and because it had significant value to the cdc independent of the package, it could not be classified',
12911:'as so necessary to the other publications in the package that advance payment authority would be available. the federal acquisition',
12912:'regulation advance payment provisions do not apply to subscriptions to publications. 48 c.f.r. § 32.404a6. 5. other governmental entities the',
12913:'comptroller general has not applied the advance payment prohibition to payments to other federal agencies. as noted previously, the primary',
12914:'purpose of the prohibition is to preclude the possibility of loss in the event a contractor, after receipt of payment,',
12915:'should fail to perform and fail or refuse to refund the money to the united states. the danger of such',
12916:'a loss is minimized when the contractor is another government agency. thus, 31 u.s.c. § 3324 does not prohibit advance',
12917:'payment of post office box page 565 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time rentals. 25 comp.',
12918:'gen. 834 1946. also, the economy act, 31 u.s.c. § 1535, expressly authorizes advance payments for transactions within its scope.',
12919:'gao has applied the same rationale to exempt state and local governments from the advance payment prohibition. e.g., 57 comp.',
12920:'gen. 399 1978 no objection to advance payment of rent under lease of land from state of idaho. this exception,',
12921:'however, applies only where the state is furnishing noncommercial services reasonably available only from the state. 39 comp. gen. 285',
12922:'1959; b250935, oct. 12, 1993 sewer service charge; b118846, mar. 29, 1954 expenses of state water commissioner administering indian irrigation',
12923:'project pursuant to court order; b109485, july 22, 1952 repair, operation, and maintenance of roads in conjunction with permanent transfer',
12924:'of federal roads to county; b65821, may 29, 1947, and b34946, june 9, 1943 state court fees and other items',
12925:'of expense required to litigate in state courts in compliance with the requirements of state law; b36099, aug. 14, 1943',
12926:'lease of state lands; b35670, july 19, 1943 state forest fire prevention and suppression services. conversely, where a state provides',
12927:'the federal government with services that are freely and readily available in the commercial market, the statutory advance payment restrictions',
12928:'applicable to private contractors govern. 58 comp. gen. 29 1978 telephone services. in b207215, mar. 1, 1983, gao advised the',
12929:'national park service that it could make advance payments of annual rent on property leased from the national park foundation.',
12930:'the national park foundation is a charitable nonprofit organization created by statute to accept and administer gifts to the national',
12931:'park service, and its board of directors includes the secretary of the interior and the director of the park service.',
12932:'gao concluded that the foundation’s “unique status virtually assures that there is no threat of loss to the government.” even',
12933:'though technically the foundation is neither a state nor a federal agency, it is, in effect, tantamount to one for',
12934:'advance payment purposes. the exception recognized in the case of state and local governments has not been extended to public',
12935:'utilities. 42 comp. gen. 659 1963 telephone services. see also 27 comp. dec. 885 1921. thus, a government agency cannot',
12936:'use a utility “budget plan” which would provide for level monthly payments in a predetermined amount throughout the year. b237127,',
12937:'dec. 12, 1989 nondecision letter. in subscribing to a cable service, the national park service could only make payment after',
12938:'the service has been rendered. b254295, nov. 24, 1993. similarly, monthly charges under a page 566 gao04261sp appropriations law—vol. i',
12939:'chapter 5 availability of appropriations: time utility service contract for cable television service to a naval hospital may not be',
12940:'paid in advance. b237789, dec. 10, 1990. the federal aviation administration faa violated 31 u.s.c. § 3324 by making an',
12941:'advance payment to pacific gas and electric company for connecting electrical utility service to a remote faa facility because it',
12942:'failed to obtain “adequate security” as required by 41 u.s.c. § 255 or to follow federal acquisition regulation advance payment',
12943:'requirements. b260063, june 30, 1995. d. disposition of appropriation balances45 1. terminology annual appropriations that are unobligated at the end',
12944:'of the fiscal year for which they were appropriated are said to “expire” for obligational purposes.46 in other words, they',
12945:'cease to be available for the purposes of incurring and recording new obligations. the same principle applies to multiple year',
12946:'appropriations as of the end of the last fiscal year for which they were provided. for purposes of this discussion,',
12947:'annual and multiple year appropriations are referred to cumulatively as “fixed appropriations.” 31 u.s.c. § 1551a3. the portion of an',
12948:'appropriation that has not actually been spent at the end of the fiscal year or other definite period of availability',
12949:'is called the 45 while the discussion in this section includes the time period preceding 1990, except as otherwise specified,',
12950:'references to 31 u.s.c. §§ 1551 through 1558 are to the procedures first established in 1990 by pub. l. no.',
12951:'101510, 104 stat. 1485, 1675 nov. 5, 1990, and include any subsequent amendments thereto. 46 the term “lapse” was sometimes',
12952:'mistakenly used in this context although there was an important distinction. generally, under prior law an appropriation “lapsed” when it',
12953:'ceased to be available to the agency to pay obligations that were in the first instance incurred and properly charged',
12954:'against the appropriation prior to its lapse. today we refer to this as a “closed” appropriation account. page 567 gao04261sp',
12955:'appropriations law—vol. i chapter 5 availability of appropriations: time “unexpended balance.”47 it consists of two components—the obligated balance and the',
12956:'unobligated balance. the obligated balance is defined as “the amount of unliquidated obligations applicable to the appropriation less amounts collectible',
12957:'as repayments to the appropriation.” 31 u.s.c. § 551a1. restated, obligated balance means the amount of undisbursed funds remaining in',
12958:'an appropriation against which definite obligations have been recorded. the unobligated balance is “the difference between the obligated balance and',
12959:'the total unexpended balance.” id. at § 1551a2. it represents that portion of the unexpended balance unencumbered by obligations recorded',
12960:'under 31 u.s.c. § 1501. 2. evolution of the law congressional treatment of unexpended balances has changed a number of',
12961:'times over the years, most recently in november 1990. some knowledge of the past is useful in understanding the pre1991',
12962:'decisions and in determining which portions of them remain applicable. prior to 1949, unexpended balances of annual appropriations retained their',
12963:'fiscal year identity for two full fiscal years following expiration, after which time the remaining undisbursed balance had to be',
12964:'covered into the surplus fund of the treasury. the agency involved no longer had access to the balance for any',
12965:'purpose, and subsequent claims against the appropriation had to be settled by gao. e.g., b24565, apr. 2, 1942; b18740, july',
12966:'23, 1941. the appropriation was said to “lapse” when it was covered into the surplus fund of the treasury. see',
12967:'24 comp. gen. 942, 945 1945; 21 comp. gen. 46 1941. the problem with this arrangement was that, in view',
12968:'of article i, section 9 of the united states constitution, once the money was covered into the treasury, another appropriation',
12969:'was needed to get it back out. e.g., 23 comp. gen. 689, 694 1944. this was true even for simple,',
12970:'undisputed claims. congress tried various devices to pay claims against lapsed appropriations—reappropriation of lapsed funds, definite and indefinite 47 depending',
12971:'on the specific context in which the term is used, “unexpended balance” may refer to the entire undisbursed balance or',
12972:'to the unobligated balance only. 22 comp. gen. 59 1942. we use it here in the broader sense. page 568',
12973:'gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time appropriations for the payment of claims under $500, and appropriations',
12974:'for specific claims—but none proved entirely satisfactory. in 1949, congress enacted the surplus fundcertified claims act ch. 299, 63 stat.',
12975:'407 july 6, 1949, intended to permit payment of claims against lapsed appropriations without the need for specific appropriations or',
12976:'reappropriations. the statute provided for the transfer of unexpended balances remaining after 2 years to a treasury account designated “payment',
12977:'of certified claims.” funds in this account remained available until expended for the payment of claims certified by the comptroller',
12978:'general to be lawfully due and chargeable to the respective balances in the account. see b61937, sept. 17, 1952. like',
12979:'the pre1949 system, this arrangement too proved unsatisfactory in that all claims payable from the certified claims account, undisputed invoices',
12980:'included, still had to come through gao. the system changed again in 1956 pub. l. no. 84798, 70 stat. 647',
12981:'july 25, 1956, on the recommendation of the second hoover commission.48 one of the significant changes made by the 1956',
12982:'law was to pass the direct responsibility for making payments from lapsed appropriations from gao to the cognizant agencies. for',
12983:'the first time, agencies could dispose of clearly valid claims against prior year appropriations without the need for any action',
12984:'by either congress or gao. the statutory evolution is discussed in more detail in b179708, nov. 20, 1973. the 1956',
12985:'law, which was to remain in effect until late 1990, prescribed different procedures for obligated and unobligated balances. the obligated',
12986:'balance retained its fiscal year identity for two full fiscal years following the expiration date, at which time any remaining',
12987:'obligated but unexpended balance was transferred to a consolidated successor account, where it was merged with the obligated balances of',
12988:'all other appropriation accounts of that department or agency for the same general purpose. these successor accounts were known as',
12989:'“m” accounts. funds in an “m” account were available indefinitely to liquidate obligations properly incurred against any of the appropriations',
12990:'from which the account was derived. upon merger in the “m” account, the obligated but unexpended balances of all annual',
12991:'and multiple year appropriations of the agency lost their fiscal year identity for expenditure purposes. 48 second commission on organization',
12992:'of the executive branch of the government, created by pub. l. no. 83108, ch. 184, 67 stat. 142 july 10,',
12993:'1953. page 569 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time with fiscal year identity no longer a',
12994:'concern, there was no need to relate a payment from the “m” account to the specific balance that had been',
12995:'transferred from the particular year in which the obligation had occurred. thus, as a practical matter, once an appropriation balance',
12996:'reached the “m” account, the potential for violations of the antideficiency act became highly remote. b179708, june 24, 1975. an',
12997:'antideficiency act violation could occur only if identifiable obligations exceeded the entire “m” account balance plus the aggregate of all',
12998:'funds potentially restorable from withdrawn unobligated balances. the unobligated balances of fixedyear appropriations were “withdrawn” upon expiration of the period',
12999:'of obligational availability and were returned to the general fund of the treasury. a withdrawn unobligated balance retained its fiscal',
13000:'year identity on the books of the treasury for two fiscal years, during which time it was called “surplus authority.”',
13001:'at the end of the 2year period, the balances were transferred to “merged surplus” accounts, at which point they lost',
13002:'their fiscal year identity. withdrawn unobligated balances could be restored to adjust previously recorded obligations where the amount originally recorded',
13003:'proved to be less than the actual obligation, or to liquidate obligations that arose but were not formally recorded prior',
13004:'to the appropriations expiration, provided that the obligations met one of the criteria specified in 31 u.s.c. § 1501a and',
13005:'were otherwise valid. some cases discussing this restoration authority are 68 comp. gen. 600 1989; 63 comp. gen. 525 1984;',
13006:'b236940, oct. 17, 1989; b232010, mar. 23, 1989; b1640313.150, sept. 5, 1979. from the perspective of congressional control, one weakness',
13007:'of the system described above was that it permitted the accumulation of large amounts in “m” accounts. while agencies were',
13008:'supposed to review their “m” accounts annually and return any excess to the treasury, this was not always done. this',
13009:'situation, in conjunction with the previously discussed rules on the funding of contract modifications, created the potential for large transactions',
13010:'with minimal congressional oversight. for example, a 1989 gao report discussed an air force proposal, completely legal under existing legislation,',
13011:'to use over $1 billion from expired accounts to fund b1b contract modifications. u.s. general accounting office, strategic bombers: b1b',
13012:'programs use of expired appropriations, gao/nsiad89209 washington, d.c.: oct. 5, 1989. page 570 gao04261sp appropriations law—vol. i chapter 5 availability',
13013:'of appropriations: time congressional concern mounted during 1990, and the treatment of expired appropriations was changed once again by section',
13014:'1405 of the national defense authorization act for fiscal year 1991, pub. l. no. 101510, 104 stat. 1485, 1675 nov.',
13015:'5, 1990. section 1405 applies to both military and civilian agencies, and includes transition provisions that dealt with the thenexisting',
13016:'merged surplus and “m” accounts. unrestored merged surplus authority was canceled as of december 5, 1990, with no further restorations',
13017:'authorized after that date. the “m” accounts were phased out over a 3year period, with any remaining “m” account balances',
13018:'canceled on september 30, 1993. 3. expired appropriation accounts the current account closing procedures are set forth in 31 u.s.c.',
13019:'§§ 1551– 1558. 49 two of the key provisions provide: “on september 30th of the 5th fiscal year after the',
13020:'period of availability for obligation of a fixed appropriation account ends, the account shall be closed and any remaining balance',
13021:'whether obligated or unobligated in the account shall be canceled and thereafter shall not be available for obligation or expenditure',
13022:'for any purpose.” 31 u.s.c. § 1552a. “after the end of the period of availability for obligation of a fixed',
13023:'appropriation account and before the closing of that account under section 1552a of this title, the account shall retain its',
13024:'fiscalyear identity and remain available for recording, adjusting, and liquidating obligations properly chargeable to that account.” 31 u.s.c. § 1553a.',
13025:'just as under the prior system, a 1year or multiple year appropriation expires on the last day of its period',
13026:'of availability and is no longer available 49 guidance relating to account closing is also set forth in omb cir.',
13027:'no. a11, preparation, submission and execution of the budget, §§ 20.4c, 130.3–130.11 july 25, 2003. see also 1 tfm 24200.',
13028:'page 571 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time to incur and record new obligations. however, the',
13029:'unobligated balance no longer reverts immediately to the general fund of the treasury. upon expiration of a fixed appropriation, the',
13030:'obligated and unobligated balances retain their fiscal year identity in an “expired account” for that appropriation for an additional five',
13031:'fiscal years. as a practical matter, agencies must maintain separate obligated and unobligated balances within the expired account as part',
13032:'of their internal financial management systems in order to insure compliance with the antideficiency act. also relevant in this connection',
13033:'is 31 u.s.c. §1554a, under which applicable audit requirements, limitations on obligations, and reporting requirements remain applicable to the expired',
13034:'account. during the 5year period, the expired account balance may be used to liquidate obligations properly chargeable to the account',
13035:'prior to its expiration.50 the expired account balance also remains available to make legitimate obligation adjustments, that is, to record',
13036:'previously unrecorded obligations and to make upward adjustments in previously under recorded obligations. for example, congress appropriated funds to provide',
13037:'education benefits to veterans under the socalled “gi bill,” codified at 38 u.s.c. § 1662. prior to the expiration of',
13038:'the appropriation, the veterans administration va denied the benefits to certain vietnam era veterans. the denial was appealed to the',
13039:'courts. the court determined that certain veterans may have been improperly denied benefits and ordered va to entertain new applications',
13040:'and reconsider the eligibility of veterans to benefits. va appealed the court order. prior to a final resolution of the',
13041:'issue, the appropriation expired. gao determined that, consistent with 31 u.s.c. § 1502b,51 the unobligated balance of va’s expired appropriation',
13042:'was available to pay benefits to veterans who filed applications prior to the expiration of the appropriation or who va',
13043:'determined were improperly denied education benefits. 70 comp. gen. 225 1991. see also b265901, oct. 14, 1997. unobligated balances in',
13044:'the expired account cannot be used to satisfy an obligation properly chargeable to current appropriations 50 comp. 50 this is',
13045:'similar to the treatment of the balances during the first two postexpiration fiscal years under the 1956 legislation. 51 31',
13046:'u.s.c. § 1502b provides that the expirations of a fixed period appropriation does not “affect the status of lawsuits or',
13047:'rights of action involving the right to an amount payable from the balance” of such appropriation that are instituted prior',
13048:'to its expiration. page 572 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time gen. 863 1971, or to',
13049:'any other expired account.52 the authority of 31 u.s.c. § 1553a is intended to permit agencies to adjust their accounts',
13050:'to more accurately reflect obligations and liabilities actually incurred during the period of availability. 63 comp. gen. 525, 528 1984.',
13051:'however, arbitrary deobligation in reliance upon the authority to make subsequent adjustments is not consistent with the statutory purpose. b179708,',
13052:'july 10, 1975. during the 5year period, the potential for an antideficiency act violation exists if the amount of adjustments',
13053:'to obligations chargeable to the expired account during a year exceeds the adjusted balance available in the expired account against',
13054:'which to charge such adjustments. should this happen, the excess can be liquidated only pursuant to a supplemental or deficiency',
13055:'appropriation or other congressional action. 73 comp. gen. 338, 342 1994; 71 comp. gen. 502 1992.53 4. closed appropriation accounts',
13056:'at the end of the 5year period, the account is closed. any remaining unexpended balances, both obligated and unobligated, are',
13057:'canceled, returned to the general fund of the treasury,54 and are thereafter no longer available for any purpose. once an',
13058:'account has been closed: “[o]bligations and adjustments to obligations that would have been properly chargeable to that account, both as',
13059:'to purpose and in amount, before closing and that are not otherwise chargeable to any current appropriation account 52 this',
13060:'authority to make obligation adjustments is analogous to the restoration authority of the law prior to 1990, with the exception',
13061:'that there is no longer a point at which balances merge and lose their fiscal year identity. 53 compare b179708,',
13062:'june 24, 1975 applying same principle during first two post expiration years under prior law. 54 we commonly talk about',
13063:'“returning” appropriation balances to the treasury. in point of fact, for the most part, they never leave the treasury to',
13064:'begin with. an appropriation does not represent cash actually set aside in the treasury. government obligations are liquidated as needed',
13065:'through revenues and borrowing. thus, the reversion of funds to the treasury is not a movement of actual cash, but',
13066:'a bookkeeping adjustment that in the various ways discussed in the text, affects the government’s legal authority to incur obligations',
13067:'and make expenditures. page 573 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time of the agency may be',
13068:'charged to any current appropriation account of the agency available for the same purpose.” 31 u.s.c. § 1553b1. this is',
13069:'a major exception to the rule previously discussed that current appropriations are not available to satisfy obligations properly chargeable to',
13070:'a prior year. for example, the office of surface mining osm entered into an economy act agreement with the department',
13071:'of energy doe for services that doe provided through a contractor. doe funded the service from noyear accounts. the final',
13072:'audit of the contractor that was performed after the osm account obligated by the economy act agreement closed revealed that',
13073:'doe owed the contractor an additional amount for performing services for osm. doe asked whether osm was liable to reimburse',
13074:'it for the additional amount under the economy act. gao replied that the account closing law required osm to reimburse',
13075:'doe the additional amounts using current appropriations available for the same general purpose as the closed account. b260993, june 26,',
13076:'1996. compare b257825, mar. 15, 1995 treasury properly refused to restore amount of canceled “m” account to federal aviation administration',
13077:'faa appropriation in order for faa to reimburse the federal highway administration fhwa for services provided that were properly chargeable',
13078:'to the canceled account. this was true notwithstanding the fact that fhwa inadvertently neglected to bill for the services at',
13079:'the time they were rendered. gao pointed out that the law provided that faa reimbursement to fhwa was chargeable to',
13080:'current appropriations. the authority to use current year appropriations to pay obligations chargeable to closed accounts is not unlimited, however.',
13081:'the cumulative total of old obligations payable from current appropriations may not exceed the lesser of 1 percent of the',
13082:'current appropriation or the remaining balance whether obligated or unobligated canceled when the appropriation account is closed. 31 u.s.c. §',
13083:'1553b. in view of the limitations on the amount of current appropriations that may be used to pay obligations properly',
13084:'charged to closed accounts, agencies must maintain records of the appropriation balances canceled beyond the end of the 5year period',
13085:'and adjust these balances as subsequently presented obligations are liquidated. 73 comp. gen. 338, 341–342 1994. otherwise, there is no',
13086:'way for agencies to ensure that payments do not exceed the original appropriation. page 574 gao04261sp appropriations law—vol. i chapter',
13087:'5 availability of appropriations: time because of the need to keep accurate records, agencies may, in limited circumstances, adjust their',
13088:'records pertaining to closed appropriation accounts. for example, if an agency determines that the balances reflected in the records of',
13089:'a closed account are erroneous because of reporting and clerical errors, it may adjust its records if it discovers that',
13090:'a disbursement actually made before the appropriation account closed and properly chargeable to an obligation incurred during the appropriations period',
13091:'of availability was either not recorded at all or was charged to the wrong appropriation. neither of these types of',
13092:'adjustments constitutes charging obligations against or disbursing funds from closed appropriation accounts. they represent corrections of the accounting records. since',
13093:'the appropriations, in effect, no longer exist, these adjustments affect only the agency’s records. they have no effect on the',
13094:'availability or use of obligated or unobligated balances formerly contained in those appropriation accounts. u.s.general accounting office, canceled dod appropriations:',
13095:'$615 million of illegal or otherwise improper adjustments, gao01697 washington, d.c.: july 26, 2001 at 7. however, adjustments may not',
13096:'be made to the records of the balances of closed accounts when the initial disbursements: 1. occurred after the appropriation',
13097:'being charged has already been closed, 2. occurred before the appropriation being charged was enacted, or 3. were charged to',
13098:'the correct appropriation in the first place and no adjustment is necessary. id. at 9–13. 5. exemptions from the account',
13099:'closing procedures congress may, by specific legislation, exempt an appropriation from the above rules and may otherwise fix the period',
13100:'of its availability for expenditure. 31 u.s.c. §§ 1551b, 1557. an agency should consider seeking an exemption if it administers',
13101:'a program that by its nature requires disbursements beyond the 5year period. one form of exemption simply preserves the availability',
13102:'for disbursement of obligated funds. for example, section 511 of the foreign operations appropriation act, 2001, authorized that the 2year',
13103:'appropriation made for “assistance for eastern europe and the baltic states” would remain available until expended if properly page 575',
13104:'gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time obligated before the appropriation would otherwise have expired on september',
13105:'30, 2002.55 section 1558a of title 31 of the united states code provides an automatic stay to the closing of',
13106:'an appropriation account under section 1552 when a protest is filed against the solicitation for, proposed award of, or award',
13107:'of a contract. the appropriation that would have funded the contract remains available for obligation for 100 days after a',
13108:'final ruling on the protest. to the extent of its applicability, the statutory scheme found at 31 u.s.c. §§ 1551–1558',
13109:'provides the exclusive method for the payment of obligations chargeable to expired appropriations. b101860, dec. 5, 1963. thus, there is',
13110:'generally no authority to transfer appropriations to some form of trust fund or working fund for the purpose of preserving',
13111:'their availability. id. see also 31 u.s.c. §1532, which prohibits the transfer of appropriations to a working fund without statutory',
13112:'authority. in b288142, sept. 6, 2001, customer agencies made advances from their fixed period appropriations to the library of congress',
13113:'for deposit to the credit of the noyear fedlink revolving fund. the advances were used by the library of congress',
13114:'to pay the cost of service provided to the agencies by library of congress contractors. once the service was provided',
13115:'and the cost determined, the library discovered that some agencies had advanced amounts in excess of the cost of the',
13116:'service ordered. we determined that the library of congress lacked authority to apply the excess amount to pay for orders',
13117:'for service placed after the expiration of the fixed period appropriation charged with the advance. the rules for certain legislative',
13118:'branch appropriations are a bit different. the provisions of 31 u.s.c. §§ 1551–1558 do not apply to appropriations to be',
13119:'disbursed by the secretary of the senate, the clerk of the house of representatives, and the district of columbia. 31',
13120:'u.s.c. § 1551c. for appropriations of the house and senate, unobligated balances more than 2 years old cannot be used',
13121:'short of an act of congress. instead, obligations chargeable to appropriations that have been expired for more than 2 years',
13122:'“shall be liquidated from any appropriations for the same general purpose, which, at the time of payment, are available for',
13123:'disbursement.” 2 u.s.c. 55 pub. l. 106429, app. a, 114 stat. 1900a3, 1900a11 and 1900a24 nov.6, 2001. see also pub.',
13124:'l. no.107115, § 511, 115 stat. 2118, 2141 jan. 10, 2002. this type of exemption does not create new budget',
13125:'authority. b243744, apr. 24, 1991. see also u.s. general accounting office, foreign assistance: funds obligated remain unspent for years, gao/nsiad91123',
13126:'washington, d.c.: apr. 9, 1991, at 21. page 576 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time §',
13127:'102a. see b213771.3, sept. 17, 1986. there is no comparable account closing procedure currently in effect for the appropriations made',
13128:'to the district of columbia from its local revenues. 6. noyear appropriations there is one important statutory restriction on the',
13129:'availability of noyear funds. under 31 u.s.c. § 1555, a noyear account is to be closed if a the agency',
13130:'head or the president determines that the purposes for which theappropriation was made have been fulfilled and b no disbursement',
13131:'has been made against the appropriation for two consecutive fiscal years.56 the purpose of section 1555 is to permit the',
13132:'closing of inactive appropriations. 39 comp. gen. 244 1959; b271607, june 3, 1996; b182101, oct. 16, 1974. any attempt by',
13133:'an agency to close a noyear account that does not satisfy the requirements of section 1555 is without legal effect',
13134:'and the funds remain available for obligation. b256765, jan. 19, 1995. an interesting example of a misplaced attempt to close',
13135:'a permanent appropriation involved the check forgery insurance fund. the check forgery insurance fund was established in 1941 to authorize',
13136:'the treasury to issue and pay a replacement check to payees whose original check was lost or stolen through no',
13137:'fault of their own and paid on a forged endorsement. 31 u.s.c. § 3343 1994. in the absence of the',
13138:'fund, the payee would have had to wait for the government to recover the amount paid on the forged endorsement',
13139:'in order to issue a replacement check to the payee. the fund was financed by appropriations made to the fund',
13140:'and recoveries of amounts paid on forged endorsements reclamations. 31 u.s.c. §§ 3343a and d 1994. in 1992, the treasury’s',
13141:'financial management service fms closed the fund asserting that it was authorized to do so by 31 u.s.c. § 1555.',
13142:'fms claimed that the fund was inadequate and obsolete and had been impliedly repealed by the competitive equality banking act.',
13143:'in response to a request for an advance decision from the department of the navy, gao determined that treasury lacked',
13144:'the authority to close the 56 prior to the 1990 amendment to section 1555, noyear appropriations were closed when the',
13145:'head of the agency determined that the purpose of the appropriation had been carried out or when no disbursement had',
13146:'been made against the appropriation for two consecutive fiscal years. thus the law in effect prior to 1990 prevented noyear',
13147:'appropriations from remaining available indefinitely in some circumstances even in the absence of a determination that the purpose of the',
13148:'appropriation had been carried out. b159687, oct. 25, 1979. page 577 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations:',
13149:'time fund. 72 comp. gen. 295 1993. first, gao determined that nothing in the language of the competitive equality banking',
13150:'act or its legislative history reflected the intent by congress to eliminate the fund. next, gao determined that the fund',
13151:'was the only appropriation available to pay forged check claims. while the volume of forged check claims may have become',
13152:'large and exceeded the amount recovered by reclamation that was available to cover issuance of the replacement check, the remedy',
13153:'was for treasury to request increased funding, not to cancel the only appropriation that was available to make such payments.',
13154:'finally, gao determined that the purpose for which the fund was established continued to exist and that treasury lacked sufficient',
13155:'justification to close the fund under 31 u.s.c. § 1555. thus, gao determined that treasury should restore the balance to',
13156:'the fund and charge all check forgery claims to the fund. once the fund balance was restored gao recommended that',
13157:'treasury request sufficient appropriations or a permanent indefinite appropriation to pay claims. the law was amended in 1995 to make',
13158:'a permanent indefinite appropriation to the fund of amounts necessary to issue and pay replacement checks to payees whose original',
13159:'check was paid on a forged endorsement. 31 u.s.c. § 3343a. as with fixed appropriations, obligations attributable to the canceled',
13160:'balance of a noyear account may be paid from current appropriations for the same purpose, and subject to the same',
13161:'1 percent limitation. 31 u.s.c. § 1553b. like a noyear appropriation, a permanent indefinite appropriation e.g., 31 u.s.c. §1304 is',
13162:'not subject to fiscal year limitations. however, 31 u.s.c. § 1555 does not apply to permanent indefinite appropriations since the',
13163:'“remaining balance” by definition is the general fund of the treasury. cf. 11 comp. dec. 400 1905 applying a prior',
13164:'version of the account closing law to a permanent indefinite appropriation. 7. repayments and deobligations a. repayments to prevent the',
13165:'overstatement of obligated balances, the term “obligated balance” is defined in 31 u.s.c. § 1551a1, for purposes of 31 u.s.c.',
13166:'§§ 1551–1557, as the amount of unliquidated obligations applicable to the appropriation, “less amounts collectible as repayments to the appropriation.”',
13167:'once an account has been closed pursuant to either page 578 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations:',
13168:'time 31 u.s.c. § 1552a or 31 u.s.c. § 1555, collections received after closing, which could have been credited to',
13169:'the appropriation account if received prior to closing, must be deposited in the treasury as miscellaneous receipts. 31 u.s.c. §',
13170:'1552b. the term “repayment” is a general term referring to moneys received by a federal agency that are authorized to',
13171:'be credited to the receiving agency’s appropriation and are not required to be deposited in the treasury as miscellaneous receipts.',
13172:'treasury departmentgeneral accounting office joint regulation no. 1, sept. 22, 1950, reprinted at 30 comp. gen. 595 1950. section 2',
13173:'of joint regulation no. 1 divides repayments into two subcategories: 1 reimbursements for services or items provided outside parties that',
13174:'the agency is authorized by independent statutory authority to retain and disburse for an authorized purpose57 and 2 refunds of',
13175:'overpayments and erroneous payments that the agency is authorized to retain and use even in the absence of independent statutory',
13176:'authority.58 generally, in the absence of some other authority, when the appropriation to be credited has expired, reimbursements must be',
13177:'credited to the expired account and not to the current account. for example, reimbursements for items or services provided another',
13178:'agency under the economy act59 are credited to the fiscal year appropriation that earned them regardless of when the reimbursements',
13179:'are collected. if the appropriation that earned the reimbursement remains available for obligation at the time of collection, there is',
13180:'no distinction between a credit to the year earned or to the year collected. if, however, the appropriation that earned',
13181:'the reimbursement has expired for obligation purposes at the time of collection, then reimbursement can be credited only to the',
13182:'expired account. b194711, june 23, 1980; b179708, dec. 1, 1975. after closing, the reimbursement would have to go to miscellaneous',
13183:'receipts. the same treatment is accorded to refunds.60 for example, recoveries of amounts paid under a fraudulent contract constitute refunds',
13184:'that may be 57 these are referred to as “offsetting collections.” omb cir. no. a11, preparation, submission and execution of',
13185:'the budget, §§ 20.3, 20.7c july 25, 2003. 58 see chapter 6, section e. 59 31 u.s.c. §§ 1535, 1536.',
13186:'60 omb cir. no. a11, §§ 20.10, 20.12c provides additional guidance on the availability of, and accounting for, refunds. page',
13187:'579 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time deposited to the credit of the appropriations charged with',
13188:'the payments until the appropriation account is closed. once the account is closed, recoveries should be deposited to the general',
13189:'fund of the treasury to the credit of the appropriate receipt account. b257905, dec. 26, 1995; b217913.2, feb. 19, 1993.',
13190:'certain exceptions to these rules have been recognized in the treatment of de minimis amounts. for example, we did not',
13191:'object to an agency accepting a credit of less than $100 from a vendor against the amount owed on a',
13192:'current year obligation to offset an overpayment made to the vendor on a prior year obligation without adjusting the accounts.',
13193:'72 comp. gen. 63 1992. see also b217913.3, june 24, 1994. b. deobligations the amount of an obligation that is',
13194:'recorded against appropriations in excess of the amount necessary to pay the obligation is accounted for as follows: if the',
13195:'agency deobligated the appropriation before the expiration of the period of availability, the deobligated amount is available to incur new',
13196:'obligations. if an agency deobligates the appropriation after the expiration of the period of availability, the deobligated amount is not',
13197:'available to incur a new obligation, but is available to cover appropriate adjustments to obligations in the expired account. b286929,',
13198:'apr. 25, 2001. see also 52 comp. gen. 179 1972. deobligated noyear funds, as well as noyear funds recovered as',
13199:'a result of cost reductions, are available for obligation on the same basis as if they had never been obligated,',
13200:'subject to the restrictions of 31 u.s.c. § 1555. 40 comp. gen. 694, 697 1961; b211323, jan. 3, 1984; b200519,',
13201:'nov. 28, 1980. one early decision concerned the disposition of liquidated damage penalties deducted from payments made to a contractor.',
13202:'the comptroller general concluded that, if the contractor had not objected to the deduction within 2 years, the funds could',
13203:'be treated as unobligated balances available for expenditure in the same manner as other funds in the account, assuming the',
13204:'noyear account contained a sufficient balance for the discharge of unanticipated claims. 23 comp. gen. 365 1943. there was nothing',
13205:'magic about the suggested 2year period. it was simply gao’s estimate of a point beyond which the likelihood of a',
13206:'claim by the contractor would be sufficiently remote. id. at 367. legislation on rare occasion has authorized an agency to',
13207:'reobligate amounts that are deobligated after the appropriation has expired. this has been referred to as deobligationreobligation “deobreob” authority. we',
13208:'mention this only to emphasize that deobreob authority should not be confused with the general authority conferred on agencies by',
13209:'the account page 580 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time closing law to use amounts freed',
13210:'up as a result of the downward adjustment of obligations occurring prior to closing that are now generally referred to',
13211:'as deobligated amounts.61 e. effect of litigation on period of availability if the entitlement to unobligated funds is tied up',
13212:'in litigation, the statutory expiration and closing procedures could come into conflict with a claimants right to pursue a claim',
13213:'with the courts. suppose, for example, congress made an appropriation directing the comptroller general to pay a huge bonus to',
13214:'the editors of this manual. suppose further that the agency refused to make payment because it thought the idea economically',
13215:'unsound or just plain ridiculous. maybe the agency would rather use the money for other purposes or simply let it',
13216:'revert to the treasury. the editors of course could sue and would presumably be entitled to pursue the suit through',
13217:'the appellate process if necessary. but this could take years. if the obligational availability of the appropriation were to expire',
13218:'at the end of the fiscal year, the suit might very well have to be dismissed as moot. see, e.g.,',
13219:'township of river vale v. harris, 444 f. supp. 90, 93 d.d.c. 1978. what, then, can be done to prevent',
13220:'what one court has termed presumably with tongue in judicial cheek “the nightmare of reversion to the federal treasury”?62 the',
13221:'answer is twofold: the equitable power of the federal judiciary and a statute, 31 u.s.c. § 1502b. while the cases',
13222:'discussed in this section predate the 1990 revision of 31 u.s.c. §§ 1551–1557 and thus use language that is in',
13223:'some respects obsolete, the concepts would appear applicable either directly or by analogy to the new procedures. for example, if',
13224:'a court could enjoin reversion to the treasury under the old law, it can presumably equally enjoin expiration under the',
13225:'new law. the cases establishing the equitable power of the courts involve two distinct situations—the normal expiration of annual appropriations',
13226:'at the end of the fiscal year and the expiration of budget authority in accordance with the terms of the',
13227:'applicable authorizing legislation. for purposes of the principles to be discussed, the distinction is not material. see b115398.48, 61 see,',
13228:'e.g., b218762, sept. 18, 1985 and b200519, nov. 28, 1980, for discussions of examples of “deobreob” authority. 62 burton v.',
13229:'thornburgh, 541 f. supp. 168, 174 e.d. pa. 1982. page 581 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations:',
13230:'time dec. 29, 1975 nondecision letter. thus, we have generally not specified which of the two each case involves. the',
13231:'concept of applying the courts’ equity powers to stave off the expiration of budget authority seems to have first arisen,',
13232:'at least to any significant extent, in a group of impoundment cases in the early 1970s. a number of potential',
13233:'recipients under various grant and entitlement programs filed suits to challenge the legality of executive branch impoundments. the device the',
13234:'courts commonly used was a preliminary injunction for the express purpose of preventing expiration of the funds. for example, in',
13235:'national council of community mental health centers, inc.v. weinberger, 361 f. supp. 897 d.d.c. 1973, plaintiffs challenged the impoundment of',
13236:'grant funds under the community mental health centers act. pending the ultimate resolution on the merits, the court issued a',
13237:'preliminary injunction to prevent expiration of unobligated funds for the grant programs in question. id. at 900. other cases employing',
13238:'similar devices to preserve the availability of funds are: maine v. fri, 486 f.2d 713 1st cir. 1973; bennettv. butz,',
13239:'386 f. supp. 1059 d. minn. 1974; guadamuz v. ash, 368 f. supp. 1233 d.d.c. 1973; community action programs executive',
13240:'directors ass’n of new jersey, inc. v. ash, 365 f. supp. 1355 d.n.j. 1973; oklahoma v. weinberger, 360 f. supp.',
13241:'724 w.d. okla. 1973. in several of the cases e.g., national council of community mental health centers v. weinberger, community',
13242:'action programs executive directors ass’n v. ash, bennett v. butz, the court not only enjoined expiration of the funds but',
13243:'directed the agency to record an obligation under 31 u.s.c. § 1501a. one of these cases, bennett v. butz, spawned',
13244:'a decision of the comptroller general, 54 comp. gen. 962 1975, in which gao confirmed that such an order would',
13245:'constitute a valid obligation under 31 u.s.c. § 1501a6, which says that no amount shall be recorded as an obligation',
13246:'unless it is supported by documentary evidence of a liability that may result from pending litigation. the concept has also',
13247:'been applied in nonimpoundment cases. an example is city of los angeles v. adams, 556 f.2d 40 d.c. cir. 1977.',
13248:'the airport and airway development act of 1970 established a formula for the apportionment of airport development grant funds. the',
13249:'statute also established minimum aggregate amounts for the grants, but subsequent appropriation acts imposed monetary ceilings lower than the authorized',
13250:'amounts. the court held that the appropriation ceilings controlled, but that page 582 gao04261sp appropriations law—vol. i chapter 5 availability',
13251:'of appropriations: time the money still had to be apportioned in accordance with the formula in the enabling legislation. to',
13252:'preserve the availability of the additional grant funds the plaintiff was seeking, the district court had ordered the federal aviation',
13253:'administration to obligate the amount in question prior to the statutory deadline, and the court of appeals confirmed this as',
13254:'proper. id. at 51.63 thus, what we may view as the “first wave” of cases firmly established the proposition that',
13255:'a federal court can enjoin the statutory expiration of budget authority. inevitably, the next group of cases to arise would',
13256:'involve the power of the courts to act after the funds have expired for obligational purposes—in other words, the power',
13257:'of the courts to “revive” expired budget authority. the “leading case” in this area appears to be national ass’n of',
13258:'regional councils v. costle, 564 f.2d 583 d.c. cir. 1977. the plaintiff sued to force the environmental protection agency to',
13259:'make available unobligated contract authority under the federal water pollution control act amendments of 1972. the court first noted that',
13260:'contract authority is a form of budget authority, and when made available for a definite period, terminates at the end',
13261:'of that period the same as direct appropriations.64 the court then reaffirmed the proposition that courts may “order that funds',
13262:'be held available beyond their statutory lapse date if equity so requires.” id. at 588. however, the court found the',
13263:'rule inapplicable because the suit had not been filed prior to the relevant expiration date, and the court therefore did',
13264:'not acquire jurisdiction of the case prior to expiration. the essence of the costle decision is the following excerpt: “decisions',
13265:'that a court may act to prevent the expiration of budget authority which has not terminated at the time suit',
13266:'is filed are completely consistent with the accepted principle that the equity powers of the courts allow them to take',
13267:'action to preserve the status quo of a dispute and to protect their ability to decide a case properly before',
13268:'them. in such situations, the courts simply suspend the operation 63 the court also noted that the district court could',
13269:'“obtain assistance from the comptroller generals expertise in matters of expenditures, reductions by appropriations, and impoundments.” city of los angeles,',
13270:'556 f.2d at 51. 64 gao had previously expressed the same view. 32 comp. gen. 29, 31 1952, cited in',
13271:'costle, 564 f.2d at 587 n.10. page 583 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time of a',
13272:'lapse provision and extend the term of already existing budget authority. if, however, budget authority has lapsed before suit is',
13273:'brought, there is no underlying congressional authorization for the court to preserve. it has vanished, and any order of the',
13274:'court to obligate public money conflicts with the constitutional provision vesting sole power to make such authorizations in the congress.',
13275:'[footnote omitted.] equity empowers the courts to prevent the termination of budget authority which exists, but if it does not',
13276:'exist, either because it was never provided or because it has terminated, the constitution prohibits the courts from creating it',
13277:'no matter how compelling the equities.” id. at 588–89. costle is also significant in that it explained and clarified several',
13278:'prior cases that had purported to establish a similar, and in one instance even broader, principle. specifically: national ass’n of',
13279:'neighborhood health centers, inc. v. mathews, 551 f.2d 321 d.c. cir. 1976. this was a suit challenging the administration of',
13280:'the hillburton act. the court found that certain funds had been improperly used, and directed their recovery and reallocation. the',
13281:'court further noted that the district court could order that the funds be held available if necessary to prevent their',
13282:'expiration upon recovery. however, the costle court pointed out that the funds in mathews had already been obligated and thus',
13283:'had not expired before suit was filed. costle, 564 f.2d at 588. jacksonville port authority v. adams, 556 f.2d 52',
13284:'d.c. cir. 1977. the plaintiff, in a suit to obtain additional funds under the airport and airway development program, had',
13285:'sought a temporary restraining order tro to prevent expiration of the funds, which the district court denied. the court of',
13286:'appeals found denial of the tro to be an abuse of discretion and held that, in the words of the',
13287:'costle court, “relief was still available because it would have been available if the district court had initially done what',
13288:'should have been done,” that is, grant the preservation remedy. costle, 564 f.2d at 588. a similar case is wilson',
13289:'v. watt, 703 f.2d 395 9th cir. 1983 reversing the district court’s denial of preliminary injunction and directing preservation of',
13290:'funds as necessary. page 584 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time pennsylvania v. weinberger, 367 f.',
13291:'supp. 1378 d.d.c. 1973. this was an impoundment suit involving the elementary and secondary education act of 1965, pub. l.',
13292:'no. 8910, 79 stat. 27 apr. 11, 1965. noting the thenexisting authority of agencies to restore expired unobligated balances, the',
13293:'court concluded that it had even broader equitable power to order the restoration of expired appropriations. the costle court expressly',
13294:'rejected the broad view that “once it is shown that congress has authorized the restoration of lapsed authority under some',
13295:'circumstances then the courts may order the restoration and obligation of lapsed authority whenever they deem it appropriate.” costle, 564',
13296:'f.2d at 589. the pennsylvania decision was nevertheless correct, however, in that a separate statutory provision had extended the availability',
13297:'of the funds in question. costle, 564 f.2d at 589 n.12. a case similar to pennsylvania is louisiana v. weinberger,',
13298:'369 f. supp. 856 e.d. la. 1973. the analog under current legislation would be obligation adjustments under 31 u.s.c. §',
13299:'1553a. thus, under costle, the crucial test is not whether the court actually acted before the budget authority expired, but',
13300:'whether it had jurisdiction to act. as long as the suit is filed prior to the expiration date, the court',
13301:'acquires the necessary jurisdiction and has the equitable power to “revive” expired budget authority, even where preservation is first directed',
13302:'at the appellate level. the principles set forth in costle have been followed and applied in several later cases. connecticut',
13303:'v. schweiker, 684 f.2d 979 d.c. cir. 1982, cert. denied, 459 u.s. 1207 1983; united states v. michigan, 781 f.',
13304:'supp. 492 e.d. mich. 1991; burton v. thornburgh, 541 f. supp. 168 e.d. pa. 1982; grueschow v. harris, 492 f.',
13305:'supp. 419 d.s.d., aff’d, 633 f.2d 1264 8th cir. 1980; sodus central school district v. kreps, 468 f. supp. 884',
13306:'w.d. n.y. 1978; township of river vale v. harris, 444 f. supp. 90 d.d.c. 1978. see also dotson v. department',
13307:'of housing& urban development, 731 f.2d 313, 317 n.2 6th cir. 1984. the application of the costle doctrine “assumes that',
13308:'funds remain after the statutory lapse date.” west virginia ass’n of community health centers, inc. v. heckler, 734 f.2d 1570,',
13309:'1577 d.c. cir. 1984. see heleba v. allbee, 628 a.2d 1237, 1240 vt. 1992. consequently, where all funds have properly',
13310:'been disbursed the key word here is “properly”, the costle doctrine no longer applies. id. to an extent, this gives',
13311:'agencies the potential to circumvent the costle doctrine simply by spending the money, as long as the obligations and disbursements',
13312:'are “proper.” recognizing this, page 585 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time the west virginia association',
13313:'court cautioned that “we do not mean to suggest our approval, in every case, of government decisions to expend funds',
13314:'over which a legal controversy exists.” 734 f.2d at 1577 n.8. in addition, to prevent this potential loophole from swallowing',
13315:'up the rule, there is a logical corollary to the costle doctrine to the effect that courts may enjoin the',
13316:'obligation of funds or even the disbursement of funds already obligated where disbursement would have the effect of precluding effective',
13317:'relief and thereby rendering the case moot. see city of houston v. department of housing & urban development, 24 f.3d',
13318:'1421, 1426–27 d.c. cir. 1994; population institute v. mcpherson, 797 f.2d 1062 d.c. cir. 1986.65 similarly, the district court’s injunction',
13319:'in bennett v. butz, quoted in 54 comp. gen. 962, supra, included a provision mandating retention of the obligated balances',
13320:'until further order of the court. when congress acts to rescind an appropriation, those amounts are no longer available to',
13321:'the court for award. city of houston, 24 f.3d at 1426. it does not matter that the court has issued',
13322:'a temporary restraining order requiring the agency to set aside funds pending the resolution of the plaintiff’s timely filed claim.',
13323:'rochester pure waters district v. epa, 960 f.2d 180, 183–84 d.c. cir. 1992. a temporary restraining order is not binding',
13324:'on congress, which has “absolute control of the moneys of the united states.” id. at 185. see harrington v. bush,',
13325:'553 f.2d 190, 194 n.7 d.c. cir. 1977. thus, after congress has rescinded an appropriation, a court may not order',
13326:'a permanent injunction awarding the rescinded funds to the plaintiff, as the court cannot order the obligation of funds for',
13327:'which there is no appropriation. rochester, 960 f.2d at 184. in addition to the judicial authority in costle and the',
13328:'cases that follow, there is a statute that seems to point in the same direction, 31 u.s.c. § 1502b, which',
13329:'provides: “a provision of law requiring that the balance of an appropriation or fund be returned to the general fund',
13330:'of the treasury at the end of a definite period does not affect the status of lawsuits or rights of',
13331:'action involving the right to an amount payable from the balance.” 65 the premise underlying all of these cases is',
13332:'that any monetary relief ultimately granted to the plaintiff is payable only from, and to the extent of, the preserved',
13333:'balances. see chapter 14 of volume iii of the second edition of principles of federal appropriations law, section entitled “impoundment/assistance',
13334:'funds” for case citations. page 586 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time the statute was enacted',
13335:'as part of a continuing resolution in 1973. pub. l. no. 9352, § 111, 87 stat. 134 july 1, 1973.',
13336:'its legislative history, which is extremely scant, is found at 119 cong. rec. 22326 june 29, 1973, and indicates that',
13337:'it was generated by certain impoundment litigation then in process. for the most part, the courts have relied on their',
13338:'equitable powers and have made little use of 31 u.s.c. § 1502b. connecticut v. schweiker cited the statute in passing',
13339:'in a footnote. 684 f.2d 979, at 996 n.29. the court in township of river vale v. harris, 444 f.',
13340:'supp. at 94, noted the statute but found it inapplicable because the funds in that case would have reverted to',
13341:'a revolving fund rather than to the general fund of the treasury. in population institute v. mcpherson, 797 f.2d at',
13342:'1081, and international union, united automobile, aerospace & agricultural implement workers of america v. donovan, 570 f. supp. 210,220 d.d.c.',
13343:'1983, the court cited section 1502b essentially as additional support for the rule that courts have the equitable power to',
13344:'prevent the expiration of budget authority in appropriate cases. note that the statute uses the words “lawsuits or rights of',
13345:'action.” one court has relied on this language to reach a result perhaps one step beyond costle. in missouri v.',
13346:'heckler, 579 f. supp. 1452 w.d. mo. 1984, the plaintiff state sued the department of health and human services hhs',
13347:'for reimbursement of expenditures under the medicaid program. based on connecticut v. schweiker, supra, the court concluded that the plaintiff',
13348:'was clearly entitled to be paid. the court then reviewed a provision of the department’s fiscal year 1983 continuing resolution',
13349:'and directed that the claims be paid in fiscal years 1984 through 1986. alternatively, the court applied 31 u.s.c. §',
13350:'1502b and held that the claims were payable from and to the extent of the unobligated balance of fiscal year',
13351:'1981 funds. although missouri had not filed its lawsuit prior to the end of fiscal year 1981, it had filed',
13352:'its claims for reimbursement with hhs before then. the court found that “missouri’s right to reimbursement arose when it filed',
13353:'its claims in a timely fashion …and otherwise complied with the law and regulations then in effect. with this right',
13354:'to reimbursement came the concomitant right of action to enforce the claim for reimbursement.” missouri, 579 f. supp. at 1456.',
13355:'the missouri court further noted that if section 1502b is to meaningfully preserve the “status” of rights of action, it',
13356:'should also be construed as preserving the availability of funds. id. at 1456 n.4. page 587 gao04261sp appropriations law—vol. i',
13357:'chapter 5 availability of appropriations: time the comptroller general followed a similar approach in 62 comp. gen. 527 1983. a',
13358:'labor union had filed an unfair labor practice charge with the statutorily created foreign service labor relations board, based on',
13359:'a refusal by the united states information agency to implement a decision of the foreign service impasse disputes panel. the',
13360:'dispute concerned fiscal year 1982 performance pay awards for members of the senior foreign service. the question presented to gao',
13361:'was the availability of fiscal year 1982 funds to pay the awards after the end of the fiscal year. gao',
13362:'first found 31 u.s.c. § 1501a6 which provides that an obligation may be recorded when supported by documentary evidence of',
13363:'a liability that may result from pending litigation inapplicable, then concluded that, by virtue of 31 u.s.c. § 1502b, the',
13364:'unobligated balance of fiscal year 1982 funds remained available for the awards. the unfair labor practice proceeding was a “right',
13365:'of action,” and the statute therefore operated to preserve the availability of the funds. under 31 u.s.c. §§ 1551–1557, funds',
13366:'are “returned to the general fund of the treasury” only when the account is closed, raising the question whether section',
13367:'1502b continues to apply to expiration in addition to closing. if section 1502b is to be construed in light of',
13368:'its purpose, then the answer is that expired appropriations will continue to be available to liquidate obligations that arise from',
13369:'injunctive relief ordered by a court or agreed to by an agency in settlement of a legal dispute. see 70',
13370:'comp. gen. 225, 229– 30 1991. in general, section 1553a “provides that an expired account retains its fiscal year identity',
13371:'and remains available for recording, adjusting, and liquidating obligations properly chargeable to that account.” emphasis in original. 71 comp. gen.',
13372:'502, 505 1992. however, pursuant to section 1552a, an appropriation may only be used to pay properly chargeable obligations during',
13373:'the period of the appropriation’s availability and during the five fiscal years immediately following the period of availability. after that,',
13374:'the appropriation account is closed and the remaining balance is canceled. 73 comp. gen. 338, 342 1994. if a valid',
13375:'obligation arises after the appropriation account is closed, section 1553b authorizes payment of the obligation from current appropriations if account',
13376:'records show that sufficient funds remained available to cover the obligation when the account was closed by operation of law.',
13377:'id. ; 71 comp. gen. at 505–506. similar problems exist in the case of bid protests. if a protest is',
13378:'filed near the end of a fiscal year and the contract cannot be awarded until the protest is resolved, the',
13379:'contracting agency risks expiration of the funds. page 588 gao04261sp appropriations law—vol. i chapter 5 availability of appropriations: time congress',
13380:'addressed this situation in late 1989 by enacting a new 31 u.s.c. § 1558a,66 which currently reads as follows: “a',
13381:'…[f]unds available to an agency for obligation for a contract at the time a protest …is filed in connection with',
13382:'a solicitation for, proposed award of, or award of such contract shall remain available for obligation for 100 days after',
13383:'the date on which the final ruling is made on the protest…. a ruling is considered final on the date',
13384:'on which the time allowed for filing an appeal or request for reconsideration has expired, or the date on which',
13385:'a decision is rendered on such an appeal or request, whichever is later.” this provision applies to protests filed with',
13386:'gao, the contracting agency, or a court under 31 u.s.c. §§ 3552 and 3556, and to protests filed with the',
13387:'general services board of contract appeals, the contracting agency, or a court under 40 u.s.c. § 759f. 31 u.s.c. §',
13388:'1558b. 66 national defense authorization act for fiscal years 1990 and 1991, pub. l. no. 101189, § 813, 103 stat.',
13389:'1352, 1494 nov. 29, 1989. the provision applies governmentwide. page 589 gao04261sp appropriations law—vol. i the government accountability office, the',
13390:'audit, evaluation and gao’s mission investigative arm of congress, exists to support congress in meeting its constitutional responsibilities and to',
13391:'help improve the performance and accountability of the federal government for the american people. gao examines the use of public',
13392:'funds; evaluates federal programs and policies; and provides analyses, recommendations, and other assistance to help congress make informed oversight, policy,',
13393:'and funding decisions. gao’s commitment to good government is reflected in its core values of accountability, integrity, and reliability. the',
13394:'fastest and easiest way to obtain copies of gao documents at no cost obtaining copies of is through gao’s web',
13395:'site www.gao.gov. each weekday, gao postsgao reports and newly released reports, testimony, and correspondence on its web site. to have',
13396:'gao email you a list of newly posted products every afternoon, go to testimony www.gao.gov and select “subscribe to updates.”',
13397:'order by mail or phone the first copy of each printed report is free. additional copies are $2 each. a',
13398:'check or money order should be made out to the superintendent of documents. gao also accepts visa and mastercard. orders',
13399:'for 100 or more copies mailed to a single address are discounted 25 percent. orders should be sent to: u.s.government',
13400:'accountability office 441 g street nw, room lm washington, d.c. 20548 to order by phone: voice: 202 5126000 tdd: 202',
13401:'5122537 fax: 202 5126061 contact: to report fraud, web site: www.gao.gov/fraudnet/fraudnet.htm waste, and abuse in email: fraudnet@gao.govfederal programs automated answering',
13402:'system: 800 4245454 or 202 5127470 gloria jarmon, managing director, jarmong@gao.gov 202 5124400 congressional u.s.government accountability office, 441 g street',
13403:'nw, room 7125 relations washington, d.c. 20548 paul anderson, managing director, andersonp1@gao.gov 202 5124800 public affairs u.s.government accountability office, 441',
13404:'g street nw, room 7149 washington, d.c. 20548',