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Gao-17-797Sp, Principles of Federal Appropriations

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United States Government Accountability Office Office of the General Counsel PRINCIPLES OF FEDERAL APPROPRIATIONS LAW Chapter 3 Availability of Appropriations: Purpose Fourth Edition 2017 Revision This document supersedes chapter 4 of GAO, Principles of Federal Appropriations Law, 3rd ed., GAO-04-261SP (Washington, D.C.: Jan. 2004). Chapters 5 through 15 of the third edition of Principles of Federal Appropriations Law, in conjunction with GAO, Principles of Federal Appropriations Law: Annual Update to the Third Edition, GAO-15-303SP (Washington, D.C.: Mar. 2015), remain the most currently available material on the topics discussed therein. Both Principles and the Annual Update to the Third Edition are available at www.gao.gov/legal/red- book/overview. GAO-17-797SP Table of Contents A. The purpose statute: 31 U.S.C. § 1301(a) 9 B. The necessary expense rule and the three-step analysis 14 C. Step 1: logical relationship between the expenditure and the appropriation 17 1. Overview of Step 1 17 a. Expenditure must contribute to accomplishing the purposes of the corresponding appropriation 17 (1) Determining authorized purposes: examine the language of the appropriation 19 (2) Determining authorized purposes: examining other statutes 20 b. Agency determinations play a role 23 2. New or additional duties 28 3. Termination of program 30 a. Termination desired by the agency 30 b. Reauthorization pending 31 4. Personal expenses must primarily benefit the government 33 a. Introduction 33 b. Apparel 34 (1) 5 U.S.C. § 7903 38 (2) Federal Employees Uniform Act 40 (3) The Occupational Safety and Health Act of 1970 41 c. Child care; elder care 43 d. Commuting and parking 46 (1) Transit benefits 49 (2) Parking 50 e. Entertainment of government personnel 51 f. Greeting cards and seasonal decorations 53 (1) Greeting cards 53 (2) Seasonal decorations 54 g. Personal qualification expenses 55 (1) Personal qualification is a personal expense 55 Page 3-2 GAO-17-797SP Table of Contents (2) Statutory authority: 5 U.S.C. § 5757 58 h. Recreation and welfare 59 i. Telework 62 j. Miscellaneous employee expenses 65 5. Food 67 a. Employees in travel status 69 b. Employees working at official duty station under unusual conditions 69 c. Training 72 d. Employees’ food while attending non-federal meetings 74 (1) Food must be incidental to the meeting 75 (2) Additional rules where the cost of meals is charged separately 78 (3) Reimbursement for alternate meals not permitted 79 e. Employees’ food at meetings organized by a federal entity 79 (1) General rule: no use of appropriations for food at meetings organized by a federal entity 79 (2) Exceptions: where food at federally organized meetings may be permissible 81 f. Agency hosting a formal conference 83 g. Awards ceremonies 88 h. Cultural awareness programs 89 i. Cafeterias and kitchen appliances 89 j. Bottled water 91 k. Focus groups 91 l. Accomplishment of a statutory responsibility 92 m. Food for persons other than government personnel 94 n. Official reception and representation funds 96 6. Considerations for various categories of expenditures 102 a. Advertising and dissemination of information on agency activities 102 (1) Advertising and promotion 103 (2) Dissemination of information 105 b. Attorney’s fees 107 Page 3-3 GAO-17-797SP Table of Contents (1) Hiring of attorneys by government agencies 109 (2) Suits against government officers and employees 112 (3) Suits unrelated to federal employees 126 (4) Claims by federal employees 127 (a) Discrimination proceedings 127 (b) Other employee claims 130 (5) The Criminal Justice Act 135 (6) Types of actions covered 136 (7) Miscellaneous cases 137 (8) The Equal Access to Justice Act 138 (9) Contract matters 145 (a) Bid protests 145 (b) Contract disputes 147 (10) Public participation in administrative proceedings: funding of intervenors 148 c. Awards 156 (1) Government Employees’ Incentive Awards Act 156 (a) Only federal employees may receive awards under the Act 158 (b) Cash and non-cash awards are permissible 158 (c) Agencies may pay for travel, food, and miscellaneous expenses if they are related to an award 159 (d) Awards for money-saving employee suggestions must be for suggestions that save government money 163 (e) Awards are at an agency’s discretion 164 (2) Other awards statutes 164 (3) Decisions that predate the Government Employees’ Incentive Awards Act 165 d. Books and periodicals 166 e. Business cards 168 f. Contests 169 (1) Entry fees 169 (2) Government-sponsored contests 170 g. Cultural awareness programs 175 h. Entertainment for persons other than government personnel 177 (1) Entertainment authorized by law 177 Page 3-4 GAO-17-797SP Table of Contents (2) Entertainment not specifically authorized by law 179 i. Fines and penalties owed by federal employees 180 j. Gift giving 185 k. Health care and health-related items 192 (1) The Rehabilitation Act of 1973 193 (2) Employee programs related to health: 5 U.S.C. § 7901 196 (a) Treatment of on-the-job illness and dental conditions 197 (b) Pre-employment and other examinations 197 (c) Referral of employees to private physicians and dentists 200 (d) Preventive programs relating to health 201 (3) Federal Employees Health Benefits Act of 1959 203 (4) The government’s provision of a safe, sanitary workplace 203 (5) Some other health-related decisions 206 l. Miscellaneous items incident to the federal workplace 208 m. Office furnishings (decorative items) 211 n. Photographs 214 o. Postage 215 p. Rewards 216 (1) Contractual basis 216 (2) Rewards to informers 218 (a) Payments to informers: Internal Revenue Service 221 (b) Payments to informers: Customs Service 223 (3) Lost or missing government property 225 (4) Rewards to government employees 227 (5) Military deserters 228 q. Traditional ceremonies 229 r. Training 230 s. Travel 232 D. Step 2: expenditure must not be prohibited 233 1. Agency communications with Congress and the public 236 Page 3-5 GAO-17-797SP Table of Contents a. Lobbying 237 (1) Grassroots lobbying 238 (a) The Anti-Lobbying Act: 18 U.S.C. § 1913 238 (b) Appropriations act provisions: publicity or propaganda designed to influence pending legislation 247 (c) Cases involving violations of appropriations act provisions barring grassroots lobbying 252 (d) Cases with no violation of appropriations act provisions barring grassroots lobbying 258 (2) Provision of assistance to private lobbying groups 264 (3) Promotion of legislative proposals: Interior appropriations act restriction 266 (4) Lobbying with grant funds: the Byrd Amendment 269 b. Publicity or propaganda 278 (1) Self-aggrandizement 283 (2) Covert propaganda 287 (3) Purely partisan materials 293 c. Employee communications with Congress 298 d. Advertising in government publications 300 e. Publicity experts 301 2. Compensation restrictions 305 a. Dual compensation 306 b. Employment of aliens 307 c. Forfeiture of annuities and retired pay 309 (1) The Alger Hiss case 310 (2) Types of offenses covered 311 (3) Related statutory provisions 313 3. Guard services: Anti-Pinkerton Act 313 a. Evolution of the law prior to 1978 313 b. The present state of the law 317 4. Insurance 319 a. The self-insurance rule 319 b. Exceptions to the rule 323 (1) Departments and agencies generally 323 (2) Government corporations 327 Page 3-6 GAO-17-797SP Table of Contents c. Specific areas of concern 328 (1) Property owned by government contractors 328 (2) Use of motor vehicles 329 (3) Losses in shipment 331 (4) Bonding of government personnel 332 5. Meetings and conventions 334 a. Historical background 334 b. Attendance at meetings: individuals other than federal employees 337 c. Use of grant funds 342 d. Attendance at meetings: federal employees 343 e. Attendance at meetings: military personnel 348 f. Invitational travel 349 g. Rental of meeting space in District of Columbia 353 6. Membership fees: 5 U.S.C. § 5946 354 7. Sovereign immunity 361 a. Is the charge a tax or a fee? 363 (1) Firefighting services 365 (2) Other decisions and opinions considering whether a charge is a tax or a fee 369 b. Is the tax imposed upon the United States? 374 (1) State gasoline taxes 376 (2) Taxes upon government contractors 377 (a) Federal government contractors are subject to state and local taxation 377 (b) Federal government may reimburse its contractors for taxes they pay 379 (3) Public utilities 381 (4) Other decisions and opinions concerning incidence of taxes 382 c. Federal immunuity from state and local fines and penalties 387 d. Impermissible infringement upon federal activity 388 e. Recovery of taxes improperly paid 390 f. Quantum meruit 391 8. Telephone services 393 a. Telephone service to private residences 393 Page 3-7 GAO-17-797SP Table of Contents (1) The statutory prohibition and its major exception 393 (2) Funds to which the statute applies 395 (3) What is a “private residence”? 396 (4) Application of the general rule 397 (5) Exceptions 399 b. Long-distance calls 404 c. Mobile or cellular telephones 405 E. Step 3: expenditure must not be provided for in another appropriation 407 1. Specific appropriation prevails over the general one 407 2. Multiple appropriations available for the same purpose 410 Page 3-8 GAO-17-797SP Chapter 3 Availability of Appropriations: Purpose This chapter introduces the concept of the “availability” of appropriations. The decisions are often stated in terms of whether appropriated funds are or are not “legally available” for a given obligation or expenditure. This is simply another way of saying that a given item is or is not a legal expenditure. Whether appropriated funds are legally available for something depends on three things: • The purpose of the obligation or expenditure must be authorized; • The obligation must occur within the time limits applicable to the appropriation; and • The obligation and expenditure must be within the amounts Congress has established.
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