b'Applicability of the Miscellaneous Receipts Act to\nPersonal Convenience Fees Paid to a Contractor by\nAttendees at Agency-Sponsored Conferences\n\xe2\x80\x9cPersonal convenience\xe2\x80\x9d fees that attendees at agency-sponsored conferences pay to private contractors\nare not subject to the Miscellaneous Receipts Act.\n\nNovember 22, 2006\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nDEPARTMENT OF COMMERCE\nMany agencies, including within the Department of Commerce, host public\nconferences where agency officials can exchange ideas and information with peers\noutside the agency on topics relating to the agency\xe2\x80\x99s statutory mission. Often the\nagencies hire a private contractor to help plan and administer these conferences.\nThe contractor may collect fees from conference attendees to cover its costs of\nproviding certain goods and services to the attendees. You have asked whether\nthese fees are subject to the Miscellaneous Receipts Act (\xe2\x80\x9cMRA\xe2\x80\x9d), 31 U.S.C.\n\xc2\xa7 3302(b) (2000). We conclude that they are not.\nI.\nIn sponsoring a conference, you have explained, it is common for an agency to\nhire a contractor, paid out of appropriated funds, to manage logistics. It also has\nbeen common for agencies to authorize such a contractor (1) to provide meals,\nlodging, refreshments, and other goods and services to conference attendees and\n(2) to charge the attendees a \xe2\x80\x9cpersonal convenience\xe2\x80\x9d fee to cover the costs of these\nitems. You distinguish the fees collected under such a scenario from fees that a\ncontractor might collect for the agency, to cover the agency\xe2\x80\x99s costs in hosting the\nconference. 1 Agencies within the Department of Commerce have generally had\nlittle if any say in the amount of any fee. Sometimes, they have required the\ncontractor to make food available to conference attendees and have retained the\nright to some input to ensure against lavish arrangements or excessive charges that\nwould discourage attendance, but otherwise they have left the contractor free to\ndeal directly with the attendees. Any fees are collected at the discretion of the\ncontractor, not at the direction of the government.\n\n1\nWhether an agency could pay the cost of personal convenience items from its appropriations is a\nseparate question, which we do not address. As you recognize, 31 U.S.C. \xc2\xa7 1345 forbids an agency in\nmany cases from using an appropriation for \xe2\x80\x9ctravel, transportation, and subsistence expenses for a\nmeeting.\xe2\x80\x9d See generally Use of Appropriations to Pay Travel Expenses of International Trade\nAdministration Fellows, 28 Op. O.L.C. 269 (2004).\n\n132\n\n\x0cApplicability of the Miscellaneous Receipts Act to Personal Convenience Fees\n\nThis practice was called into question by the Comptroller General\xe2\x80\x99s 2005 opinion in Matter of: National Institutes of Health\xe2\x80\x94Food at Government-Sponsored\nConferences, B-300,826, 2005 WL 502825 (\xe2\x80\x9cNIH\xe2\x80\x9d). That opinion addressed\nwhether an agency could charge and retain a registration fee to defray the costs of\nmeals and light refreshments at a conference that the Institutes were hosting. The\nComptroller General advised that, under the MRA, the Institutes could not retain\nany fee. He added: \xe2\x80\x9cNor could NIH authorize its contractor to charge a fee to\noffset costs, because, pursuant to [the MRA], a contractor receiving money for the\ngovernment may not retain funds received for the government to pay for the\nconference costs.\xe2\x80\x9d Id. at *6. The Comptroller General did not explain why, in such\nsituations, the contractor would be \xe2\x80\x9can official or agent of the Government\xe2\x80\x9d under\nthe MRA in receiving payment from attendees for its services to attendees, or why\nthose fees that the contractor received would be received \xe2\x80\x9cfor the Government.\xe2\x80\x9d\nSee 31 U.S.C. \xc2\xa7 3302(b). He did recognize, however, that \xe2\x80\x9cthe participants may\ncover the costs of their food using their own personal funds.\xe2\x80\x9d NIH, 2005 WL\n502825, at *6.\nThe Comptroller General reiterated this position in Contractors Collecting Fees\nat Agency-Hosted Conferences, B-306,663, 2006 WL 39435 (\xe2\x80\x9cContractors\xe2\x80\x9d). He\nstated that \xe2\x80\x9cwhen an agency lacks statutory authority to charge a fee at a conference and retain the proceeds, neither the agency hosting a conference, nor a\ncontractor on behalf of the agency, may do so.\xe2\x80\x9d Id. at *1 (emphasis added). You\nquestion why, if attendees may purchase meals, lodging, and refreshments \xe2\x80\x9cusing\ntheir own personal funds,\xe2\x80\x9d a contractor could not offer such items to the attendees\nand then retain the attendees\xe2\x80\x99 payments from their own personal funds.\nII.\nWe agree that a private contractor may, consistent with the MRA, retain fees it\nreceives from conference attendees for goods and services such as meals, lodging,\nand refreshments that the contractor provides to the attendees. The MRA requires\nas follows: \xe2\x80\x9c[A]n official or agent of the Government receiving money for the\nGovernment from any source shall deposit the money in the Treasury as soon as\npracticable without deduction for any charge or claim.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 3302(b). In\nthe circumstances you have described, the fees are not received \xe2\x80\x9cfor the Government\xe2\x80\x9d but rather collected by contractors for their own use. 2\n2\n\nBecause we answer your question on this basis, we need not determine whether the contractors\ncould be considered \xe2\x80\x9cagent[s] of the Government\xe2\x80\x9d in their receipt of the fees, or whether the\ngovernment constructively \xe2\x80\x9creceive[s]\xe2\x80\x9d the fees, see generally Effect of 31 U.S.C. \xc2\xa7 484 on the\nSettlement Authority of the Attorney General, 4B Op. O.L.C. 684, 688 (1980). On the former question,\nthere is an argument from one of the sanctions for violating the MRA\xe2\x80\x94removal \xe2\x80\x9cfrom office,\xe2\x80\x9d 31\nU.S.C. \xc2\xa7 3302(d)\xe2\x80\x94that a contractor, not holding any \xe2\x80\x9coffice,\xe2\x80\x9d cannot be subject to the MRA. The D.C.\nCircuit has employed this reasoning. See Thomas v. Network Solutions, Inc., 176 F.3d 500, 511 (D.C.\nCir. 1999) (\xe2\x80\x9cThis sanction makes no sense with respect to a private actor like Network Solutions.\xe2\x80\x9d); cf.\n\n133\n\n\x0cOpinions of the Office of Legal Counsel in Volume 30\n\nThe most natural reading of the phrase \xe2\x80\x9cfor the Government\xe2\x80\x9d in the MRA is\nthat it describes something intended to be used by the government. See 6 Oxford\nEnglish Dictionary 24 (Clarendon 2d ed. 1989) (defining \xe2\x80\x9cfor\xe2\x80\x9d as \xe2\x80\x9c[i]ntroducing\nthe intended recipient, or the thing to which something is intended to belong, or in\nconnexion with which it is to be used\xe2\x80\x9d); cf. Motor Coach Indus., Inc. v. Dole, 725\nF.2d 958, 968 (4th Cir. 1984) (affirming injunction against contracts between\nFederal Aviation Administration and airlines under which the FAA waived certain\nfees and airlines deposited money into a trust fund: \xe2\x80\x9cthe Trust was an attempt by\nthe FAA to divert funds from their intended destination\xe2\x80\x94the United States\nTreasury\xe2\x80\x9d) (emphasis added). This interpretation is bolstered by the MRA\xe2\x80\x99s\nstatutory history and this Office\xe2\x80\x99s interpretation of the MRA\xe2\x80\x99s earlier language. In\nits original form, that act provided as follows:\n[T]he gross amount of all duties received from customs, from the\nsales of public lands, and from all miscellaneous sources, for the use\nof the United States, shall be paid by the officer or agent receiving\nthe same into the treasury of the United States at as early a day as\npracticable.\nAct of Mar. 3, 1849, ch. 110, \xc2\xa7 1, 9 Stat. 398, 398 (emphasis added). The phrase\n\xe2\x80\x9cfor the use of the United States\xe2\x80\x9d remained in the act for 133 years, until Congress\nin 1982 amended a large portion of title 31, as discussed below.\nThe reference to \xe2\x80\x9cuse\xe2\x80\x9d indicated that the money must be intended for use by, or\nmeant to cover an obligation or expense of, the United States. Thus this Office in\n1978 explained that the phrase \xe2\x80\x9cfor the use of the United States\xe2\x80\x9d in the MRA \xe2\x80\x9chas\nbeen interpreted to require that the funds in question are \xe2\x80\x98to be used in bearing the\nexpense of the administration of the Government and paying the obligations of the\nUnited States.\xe2\x80\x99\xe2\x80\x9d Memorandum for the Attorney General, from John M. Harmon,\nAssistant Attorney General, Office of Legal Counsel, Re: Legislation Regarding\nFBI Undercover Operations at 4 (July 27, 1978) (\xe2\x80\x9cUndercover Operations\xe2\x80\x9d)\n(quoting Disposition of Excess Railway Operating Income, 33 Op. Att\xe2\x80\x99y Gen. 316,\n321 (1922)). We added that \xe2\x80\x9cfunds must be available to the United States for\nScheduled Airlines Traffic Offices, Inc. v. Dep\xe2\x80\x99t of Def., 87 F.3d 1356, 1361 (D.C. Cir. 1996) (referring\nto the MRA\xe2\x80\x99s \xe2\x80\x9crequirement that a Government official \xe2\x80\x98receiving money for the Government from any\nsource\xe2\x80\x99 deposit the money in the Treasury\xe2\x80\x9d). On the other hand, section 3302(d) also includes forfeiture\nas a sanction, which might be available against a non-officer, and the D.C. Circuit\xe2\x80\x99s reading does not\nclearly give content to the term \xe2\x80\x9cagent,\xe2\x80\x9d as distinct from \xe2\x80\x9cofficial.\xe2\x80\x9d The concept of \xe2\x80\x9c[a]gency encompasses a wide and diverse range of relationships and circumstances,\xe2\x80\x9d including but not limited to the\nrelationship between \xe2\x80\x9cemployer and employee.\xe2\x80\x9d Restatement (Third) of Agency \xc2\xa7 1.01 cmt. c (2006).\nThis Office has not previously resolved the meaning of the term \xe2\x80\x9cagent\xe2\x80\x9d in the MRA. Cf. Memorandum\nfor the Attorney General, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel,\nRe: Legislation Regarding FBI Undercover Operations at 4, 8 (July 27, 1978) (using \xe2\x80\x9cagent\xe2\x80\x9d in the\nsense of FBI Special Agents and suggesting curing an MRA problem involving income received in the\nFBI\xe2\x80\x99s undercover business operations by instead \xe2\x80\x9cassociat[ing] with a private business\xe2\x80\x9d).\n\n134\n\n\x0cApplicability of the Miscellaneous Receipts Act to Personal Convenience Fees\n\ndisposition on its own behalf.\xe2\x80\x9d Id. And in applying the MRA, we noted that \xe2\x80\x9cthe\nfunds in issue are at the disposal of the United States\xe2\x80\x9d and that \xe2\x80\x9c[t]his availability . . . must mean that they were received \xe2\x80\x98for the use of the United States.\xe2\x80\x99\xe2\x80\x9d Id.\nSee also id. at 6 (purpose of MRA was to \xe2\x80\x9crequire Congressional control of all\nfunds that are available to the United States for disbursement, regardless of the\nsource of the funds or the reason the funds were surrendered to the United\nStates\xe2\x80\x9d).\nIn 1982, in re-codifying the MRA at its present location in section 3302, Congress shortened the phrase to its current form by (among other things) deleting\n\xe2\x80\x9cthe use of.\xe2\x80\x9d Act of Sept. 13, 1982, Pub. L. No. 97-258, 96 Stat. 877, 948. But the\n1982 statute itself explained that Congress\xe2\x80\x99s purpose was simply \xe2\x80\x9c[t]o revise,\ncodify, and enact without substantive change certain general and permanent laws,\nrelated to money and finance.\xe2\x80\x9d Id. at 877 (emphasis added). This Office repeatedly\nhas recognized that the 1982 revision of the MRA was not intended to work any\nsubstantive changes but rather to eliminate unnecessary words. E.g., Application of\n31 U.S.C. \xc2\xa7 3302(b) to Settlement of Suit Brought by the United States, 7 Op.\nO.L.C. 36, 37 n.3 (1983). This understanding also finds support in the background\nprinciple that \xe2\x80\x9c\xe2\x80\x98it will not be inferred that Congress, in revising and consolidating\nthe laws, intended to change their effect unless such intention is clearly expressed.\xe2\x80\x99\xe2\x80\x9d Finley v. United States, 490 U.S. 545, 554 (1989) (quoting Anderson v.\nPac. Coast S.S. Co., 225 U.S. 187, 199 (1912)).\nWith this understanding of the MRA\xe2\x80\x99s text, it is clear that personal convenience\nfees, such as you have described, are not money received \xe2\x80\x9cfor the Government.\xe2\x80\x9d\nRather, they are \xe2\x80\x9cfor\xe2\x80\x9d the event planner. The fees are not used, and are not\nintended to be used, by or for the benefit of the host agency that hires the event\nplanner. The host agency makes no claim to the fees; apart from the question of\nthe MRA\xe2\x80\x99s applicability, the planner \xe2\x80\x9cis under no duty to turn over any portion to\nthe federal government,\xe2\x80\x9d but rather \xe2\x80\x9cthe monies belong to\xe2\x80\x9d the contractor. Thomas\nv. Network Solutions, Inc., 176 F.3d 500, 511 (D.C. Cir. 1999). The conference\nattendees pay the fees to the event planner so that they can obtain meals, lodging,\nand refreshments from the planner. The planner in turn accepts the fees to cover its\ncosts in providing these goods and services to the attendees. The fees are not\n\xe2\x80\x9cavailable to the United States for disposition on its own behalf,\xe2\x80\x9d Undercover\nOperations at 4, \xe2\x80\x9cat the disposal of the United States,\xe2\x80\x9d id., or \xe2\x80\x9csurrendered to the\nUnited States,\xe2\x80\x9d id. at 6.\nNor do the personal convenience fees compensate the event planner for any\ncontractual obligation that the host agency owes to it, or enable the agency to\navoid expending appropriations on \xe2\x80\x9cservices that statutes required the agenc[y] to\nperform.\xe2\x80\x9d Thomas, 176 F.3d at 511. In Thomas, the court approved retention by\nthe private Network Solutions of fees it collected for registering internet domain\nnames because, among other things, performing such registration was not a duty of\nthe National Science Foundation. Similarly, the Comptroller General has recog-\n\n135\n\n\x0cOpinions of the Office of Legal Counsel in Volume 30\n\nnized that a \xe2\x80\x9cgovernment official or agent is deemed to receive money for the\ngovernment under the [MRA] if the money is to be used to bear the expenses of the\ngovernment or pay government obligations.\xe2\x80\x9d SBA\xe2\x80\x99s Imposition of Oversight\nReview Fees on PLP Lenders, B-300,248, 2004 WL 77861, at *7 (emphasis\nadded). The Comptroller General concluded that the Small Business Administration (\xe2\x80\x9cSBA\xe2\x80\x9d) had violated the MRA by imposing fees on lenders of SBAguaranteed loans for reviews that the SBA was required by statute to conduct, and\nwhich the lenders paid to contractors who helped to conduct the reviews, because\n\xe2\x80\x9cthe review fees paid by the lenders substitute for payment that SBA would\notherwise make.\xe2\x80\x9d Id. at *9. In the two subsequent Comptroller General opinions\ndiscussed above in Part I, the Comptroller General cited this 2004 opinion in\ngeneral, without discussion. See NIH, 2005 WL 502825, at *6; Contractors, 2006\nWL 39435, at *1. Here, the host agency has no obligation, statutory or contractual,\nto provide meals, lodging, or refreshments to conference attendees. The fees are\nnot \xe2\x80\x9cto be used in bearing the expenses of the administration of the Government\nand paying the obligations of the United States,\xe2\x80\x9d Undercover Operations at 4\n(internal quotation marks omitted), or by an agency \xe2\x80\x9cto offset expenses\xe2\x80\x9d of its\noperations, id. at 8. Thus, the personal convenience fees are not received \xe2\x80\x9cfor the\nGovernment\xe2\x80\x9d and so are not subject to the MRA.\nC. KEVIN MARSHALL\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n136\n\n\x0c'