1. Tips on Base Level Fiscal Law
Keith M. Dunn
Counsel to the Navy Surgeon General
Navy Bureau of Medicine and Surgery

2. The Power of the Purse
“No money shall be drawn from the Treasury, but in Consequence of Appropriations made by law “
Constitution, Article I, section 9, clause 7

3. what does it mean? United States v. MacCollom, 426 US 317 (1976)
“The established rule is that the expenditure of public funds is proper only when established by Congress, not that public funds may be expended unless prohibited by Congress.”
United States v. MacCollom, 426 US 317 (1976)

4. Sources of Law US CODE AUTHORIZATION ACTS APPROPRIATION ACTS
AUTHORIZE PROJECTS USC 2802
AUTHORIZE APPROPRIATIONS USC 114
ENACT PERMANENT LEGISLATION
APPROPRIATION ACTS
31 USC 1301(d)
GENERALLY TEMPORARY
OTHER PUBLIC LAWS
OPINIONS

5. THE BOX DOES NOT CHANGE! PURPOSE
Funds may be obligated and expended only for specified purposes;
TIME
Funds are available for obligation only for specified time limits
AMOUNT
Agencies may not spend more than is appropriated

6. Banking and Laundering Funds
If it sounds too good to be true, it is.
Sending money to GSA does not change the character of your money!
(Neither does MIPRing it somewhere!)
You cannot extend the life of money by offloading it somewhere!

7. Interagency Agreements B-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.

8. Natural Resources Conservation Service – Obligating Orders with GSA’s AutoChoice Summer Program B , July 1, 2009
Current fiscal year funds are not available for obligation for orders placed this fiscal year that cannot be finalized until the next fiscal year.
Not a valid obligation to the current fiscal year because, until finalized, the order is tentative and incomplete.

9. Speaking of GSA Chemical Safety and Hazard Investigation Board – Interagency Agreement with the General Services Administration, B318425, December 8, 2009
FY appropriations are not available to fund severable services that will be performed in a future fiscal year
Proposed IA that does not specify a period of performance or the services to be provided (exposing the agency to an unknown liability) violates the Antideficiency Act.

10. Funding of Severable Services Contracts Severable Services Contracts, B-317636, April 21, 2009
10 USC 2410a authorizes agencies to enter into severable services contracts that begin in one fiscal year and end no more than 12 months later funded with the appropriation current at the time of contract award
a statutory exception to the bona fide needs rule
only applies to contracts funded with time limited appropriations
An agency using a multiple year appropriation would not violate the bona fide needs rule if it enters into a severable services contract for more than one year so long as the period of performance does not exceed the period of availability of the appropriation
Bona fide needs rule not an issue with no-year funds

11. Nonseverable Services Contracts
A nonseverable services contract that is not separated for performance by fiscal years may not be funded on an incremental basis without statutory authority.
Failure to obligate the estimated cost of a nonseverable cost reimbursement contract at time of award violates the bona fide needs rule.
Financial Crimes Enforcement Network – Obligations under a Cost-Reimbursement, Nonseverable Services Contract, B , June 1, 2009

12. Recurring Purpose Issues
Plus ca change plus c'est la meme

13. 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 , April 17, 2008

14. The Food Exceptions Emergencies Training Meetings Conferences
Awards Ceremonies
Cultural Awareness Ceremonies
Travel
DoD DGC(Fiscal) memo dtd 1 Sept 05
FMB memo dtd 12 May 06 14

15. U.S. Army Garrison Ansbach, B-317423, March 9, 2009
Food may be provided for civilian employees, military members, and nonfederal participants such as contractors and host nation first responders at annual antiterrorism training exercises where necessary to achieve the objectives of the training exercise
That it would be an “embarrassment” not to provide food to host nation first responders is not sufficient justification for using appropriated funds to buy food for nonfederal personnel

16. Department of the Navy – Lunch for Volunteer Focus Group B-318499, November 19, 2009
In general, appropriated funds are not available for personal expenses, such as lunch
Whether to provide food for focus group participation must be decided on a case-by-case basis
Here, no specific statutory objective identified, so appropriated funds not available
Contrast with Veterans Benefits Administration – Refreshments for Focus Groups, B , Nov. 9, 2005

17. 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 , Sept. 29, 2009
B , 4 Feb 2008 17

18. Kitchen Appliances
Use of Appropriated Funds to Purchase Kitchen Appliances, B , 25 June 2004
appropriated funds may be used to purchase major kitchen appliances that would be placed in common areas for the use of personnel at the site

19. Clothing
“ every employee of the Government is required to present himself for duty properly attired according to the requirements of his position.”
63 Comp. Gen. 245, 246 (1984)
See also B , 3 Oct 02; B , 7 Oct 02 19

20. The Clothing Exceptions
Official Civilian DOD Uniforms: 10 U.S.C. § 1593
Administrative Expenses Act: 5 U.S.C. § 7903
Special/unusual clothing
Item must be for the benefit of the Government, essential to the safe and successful accomplishment of the work, and not solely for the protection/comfort of employee
Must involve hazardous duty
OSHA Compliance: 29 U.S.C. § 668 20

21. Not Exceptions!
Raincoats and umbrellas for employees who must frequently go out into the rain
Running shoes for couriers
Cold weather/foul weather gear 21

22. the “strolling through the mall” test
“Organizational Clothing”
Jackets with cool Command Logos given to all employees to increase esprit d’ corps
Clothing items that are specifically required safety equipment under NAVOSH Instructions
Foul weather gear and work overalls demanded by the local Labor Union
“GOOD”
“BAD”
“MAYBE”
Astronaut's Suit
Grateful Dead® T-Shirts 22

23. Other Personal Expenses
Questions to ask:
Is there a reasonable relationship between the proposed expenditure and the purpose for which the funds were appropriated?
What is the benefit to the agency?
What is the benefit to the individual?
Is there a more cost effective way to achieve the agency mission or program goals?
Examples:
Registered traveler programs
Health promotion items
Recruiting items
Gifts and other giveaway items

24. The Ever Popular Trinkets
Legitimate only:
As part of an approved Awards program
Items of no intrinsic value designed solely to assist in achieving internal agency management objectives
In rare cases, 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 item
(Rule of thumb: with the exception of a legitimate award, if it’s something actually you’d want, you can’t have it.)

25. Giveaway Items Held Proper
Caps and other items distributed to a local residents in furtherance of threatened eider conservation plan – US Fish and Wildlife Service, B , 12 August 2009
Gift cards for respondents to the Converter Box Coupon Program Survey - National Telecommunications and Information Administration, B , 25 Jan 2008
Lava rocks distributed by National Park Service at Capulin Mountain National Monument, B , 24 Jan 1979

26. Examples of Improper Giveaway Items
T-shirts with the CFC logo given to employees who contributed a certain amount
Ice scrapers imprinted with the logo “Don’t Drink and Drive”
Novelty plastic garbage cans containing candy in the shape of solid waste, given by EPA to attendees at an exposition
Decorative ashtrays given to conference attendees 26

27. Commander’s Coins Three sources of funding Caveats
O&M – for awards pursuant to a properly established awards program; or pursuant to 10 USC § 2261 authority for recognition items
ORF – IAW SECNAVINST K (for the Navy) or other relevant Instruction
OWN – for all others
Caveats
Be wary of bona fide need
Personalization increases risk of obsolete stock upon departure

28. Recognition Items for Recruitment/Retention 10 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 , October 11, 2006
OASN(FM&C) memos dated November 9, 2006 and December 14, 2006

29. Traditional Ceremonies (i.e., Retirement, Change of Command)
Traditional ceremonies are considered official events
Authorized to use appropriated funds, government personnel, and other resources
Includes cost of printing/addressing/sending reasonable number of invitations, as appropriate
Does not include cost of food, beverages, or other entertainment
Presentation of award during a traditional ceremony does not permit use of appropriated funds to purchase food at follow-on reception or ceremony

30. Commuting Expenses
National Indian Gaming Commission – Reimbursing Bicyclists as Part of the Agency’s Transportation Fringe Benefit Program, B , Aug. 12, 2009
Agency may use its authority under 5 USC 7905 to provide a $20 reimbursement to employees who commute to work by bicycle
Army – Mass Transit Benefits, Aberdeen Proving Ground, B , July 18, 2008
A certifying officer does not have a responsibility to question the wisdom of a payment where there is clear agency policy

31. Use of Government Resources
B , 4 January 1999
Joint Ethic Regulation, DoD R 3-201

32. Social Networking Has been embraced by DoD Can be a valuable tool
information dissemination
freeing workforce from answering repetitive questions
sharing best practices
information management
electronic learning

33. however -
Use caution with social networking, user generated content, and wikis
Do not combine personal and professional information.
When in doubt, talk to your lawyer!

34. remember . . .
“What happens in Vegas . . .” stays on YouTube, Facebook, Twitter
Ten seconds to post – it’s out there forever
Most Commands require users to sign statements regarding permissible use, etc.
IT Departments can detect spikes in online use; also can monitor content
Use Facebook, Twitter, etc. for personal use on personal time

35. Use of Official Government Vehicles
31 USC 1344
31 USC 1349 – penalty for violating 1344 is a suspension of at least one month

36. For the Vast Majority of Us . . .
Official Purpose
TAD Status

37. Domicile to Duty Transportation
Only as authorized by 31 U.S.C. § 1344, e.g. Secretaries and Chiefs of Staff, certain others as justified by command & control or security issues

38. Ground Travel and Transportation
Ground Transportation of Spouses
Spouses may ride in government vehicles to official events with their sponsors
Spouses may not ride by themselves in government vehicles to official events unless
the sponsor is authorized domicile-to-duty transportation and
it is impractical or impossible for the sponsor to accompany the spouse Duty-to-Duty Transportation 
Includes “family members.”

39. Air Travel and Transportation
Funded Travel of Spouses & Family Members
“Rare Exception” authorized only if
The family member actually participates in an “unquestionably official” function or capacity, or
Such travel is in the best interests of the United States because of a diplomatic or public relations benefit to the United States
DoDD , DoD R
Could be MILAIR or Commercial: Such participation is normally limited to spouses and is representational in nature
- Such travel is allowed on a mission noninterference basis
- Such travel must be supported with invitational travel orders authorizing transportation, but normally not per diem, or reimbursement for personal expenses
- Requests for per diem and other expense allowances must include strong evidence of benefit beyond just a representational role
- Funded family members must travel in the company of their sponsor when on MilAir, except in unusual circumstances such as unplanned schedule changes or compelling mission requirements of the sponsor. Under such circumstances, the family member must travel in the most cost-efficient manner, which may include MilAir. See Appendix 2 of R for approval authorities generally 4-stars.

40. Air Travel and Transportation
Unofficial travel of Spouses and Family Members of Senior Official on MilAir – also a rare exception:
Spouse/family member may accompany General Officer, SES and equivalents on official business if -
Travel is reimbursed at full coach fare
MilAir already scheduled for official trip
Spouse/family member cannot displace official travelers
Larger aircraft not required to accommodate spouse/family member travel
i.e. a fare available to the general public at the time the official travel is planned for an itinerary which parallels as closely as possible the MilAir
Includes “family members.”
But some people will never understand