Current Issues in Fiscal Law

1. Current Issues in Fiscal Law Keith M. Dunn Counsel to the Navy Surgeon General Navy Bureau of Medicine and Surgery keith.dunn@med.navy.mil 202.762.3299

2. Plus ca change plus c'est la meme

3. Interagency Agreements, part IB-308944, July 17, 2007 • A MIPR lacking specificity as to the goods or services ordered does not serve properly to obligate DOD funds • Funds must be used within a reasonable time of receipt in order to meet the bona fide needs rule.

4. Interagency Agreements, part IIB-309181, August 17, 2007 • Absent a delegation from GSA, neither GovWorks nor DoD have authority to enter into a third party lease for office space. • No ADA, because, even though the authority to do so was lacking, there was an appropriation available for the purpose of leasing office space.

5. Interagency AgreementsDoD Policy on Non-Economy Act Orders with Non-DoD Agencies • USD(C) Memo of 16 Oct 2006 • Implemented by ASN(FM&C) memo of 31 Jan 2007 • USD(C) Memo of 1 Mar 2007 • Implemented by ASN(FM&C) memo of 30 Mar 2007 • USD (AT&L)/USD(C) Memo of 14 Jun 2007 • OUSD (AT&L) Memo of 28 Mar 2008 • implemented by ASN(FM&C) memo of 29 April 2008

6. National Labor Relations Board – Funding of Subscription Contracts, B-309530, 9/17/2007 FY 06 funds available to renew subscriptions that had to be in place on October 1, 2006 FY 06 funds not available to renew subscriptions that had to be in place on November 1, 2006 bona fide needs rule

7. Earmarks • The designation of a part of a lump sum appropriation for a particular purpose • must be in the statute itself to be binding • limitations on legislative history • can illuminate • cannot provide that which is not there DoD memo dtd 10 Feb 2006 OMB memo dtd 15 Feb 2007 Executive Order, Protecting American Taxpayers From Government Spending on Wasteful Earmarks, 29 Jan 2008

8. “Pooling” Appropriations • Dept. of Homeland Security’s Use of Shared Resources within the Preparedness Directorate, B-308762, 17 September 2007 • United States Central Command – Cairo Housing, B-308150, 9 March 2007

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

10. Food Exceptions • Emergencies • Travel • Training • Conferences • Other exceptions • DoD DGC(Fiscal) memo dtd 1 Sept 05 • FMB memo dtd 12 May 06

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

12. Other Personal Expenses • Accidental death and dismemberment insurance, NTSB – Insurance for Employees Traveling on Official Business, B-309715, 9/25/2007 • Credit Monitoring Services, CBP – Availability of Appropriations for Credit Monitoring Services, B-309604, 10/10/2007 • Nuclear Regulatory Commission – Availability of Appropriations for Credit Monitoring Services, B-310865, 4/14/08

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

14. Conference Fees • 07 NDAA Sec. 1051 • SECDEF may collect conference fees to offset the cost of a conference • Any collections exceeding actual costs deposited as miscellaneous receipts • DoD memorandum dated February 12, 2007 • Preliminary implementation of 10 USC 2262 authority • Requires reimbursable authority • More specific guidance to follow • OASN (FM&C) memorandum dated March 2, 2007 • Requires written request to FMB-5 for approval • Plan for accounting receipts, reporting

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

16. The Ever Popular Trinkets • Legitimate only: • As part of an approved Awards program • (Can be almost anything) • Items of no intrinsic value designed solely to assist in achieving internal agency management objectives • (Rule of thumb: with the exception of a legitimate award, if it’s something actually you’d want, it’s improper)

17. National Telecommunications and Information Administration – Gift Cards for Respondents to the Converter Box Coupon Program Survey • B-310981, 25 Jan 2008 • what otherwise may be viewed as a personal expense may be ok where there is a direct connection between the expenditure and the execution of the agency’s mission. • benefit to the government must outweigh the personal nature of the expense • (do NOT interpret this exception broadly!)

18. Commander’s Coins Three sources of funding • O&M,N – for awards pursuant to a properly established awards program; or pursuant to 10 USC § 2261 authority for recognition items • ORF – IAW SECNAVINST 7042.7K • OWN – for all others Caveats • Be wary of bona fide need • Personalization increases risk of obsolete stock upon departure

19. Recognition Items for Recruitment/Retention10 USC 2261 • Allows appropriated funds to be used to procure items of nominal or modest value for recruitment/retention • to members of the armed forces, their families, and other individuals recognized as providing support that substantially facilitates service in the armed forces • “nominal or modest value” defined as a commemorative coin, medal, trophy, badge, flag, poster, painting, or similar item valued less than $50 • B-307892, October 11, 2006 • OASN(FM&C) memos dated November 9, 2006, December 14, 2006, and May 2008.

20. Recruiting Giveaways Items to be given away as recruiting trinkets not permitted • B-247563.3, Apr. 5, 1996 Necessary expense rule • An agency may purchase gifts or souvenirs only where there is a direct link between the items and the purpose of the appropriation to be charged. • Favorable reminders not good enough • Could not be considered advertising since only given to those already at job fair. • Armed Forces recruiting distinguished

21. Retirement Ceremonies Retirement ceremonies considered official events Appropriate recognition on occasion of retirement Armed forces (see MILPERSMAN 1800-010) Civil service Authorized to use appropriated funds, government personnel, and other resources for retirement ceremony Includes cost of printing/addressing/sending reasonable number of invitations Does not include cost of food, beverages, or other entertainment Presentation of award during retirement ceremony does not permit use of appropriated funds to purchase food at follow-on ceremony

22. OH NO! WHAT DO I DO? There are exactly six fiscal law experts in the Navy and you just slept though one of their presentations. CALL THE FISCAL LAW 911 LINE!!

23. Office of the Assistant General Counsel FM&C(703) 695-0700 Andrea Brotherton, AGC Andrea.brotherton@navy.mil Helen Rosen, Deputy AGC Helen.rosen@navy.mil Rob Taylor, Associate Counsel Robert.Taylor3@navy.mil Doug Edgecomb, Assoc. Counsel Douglas.edgecomb@navy.mil Sabrina Hay, Assoc. Counsel Sabrina.hay@navy.mil