GAO-17-797SP, PRINCIPLES OF FEDERAL APPROPRIATIONS …

United States Government Accountability Office

Office of the General Counsel

GAO-17-797SP

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 legal/redbook/overview.

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

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(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

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(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

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(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

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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

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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

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(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

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