1. Licensed by FedTrain, Inc., Atlanta, GA
module 2
The Conference
Last edited: March 14, 2007 at AFAL, OE, VA Beach.
Licensed by FedTrain, Inc., Atlanta, GA

2. The Conference Module 2 Objectives
Within the context of the case study you will learn how to analyze and apply principles of law relating to:
Purposes for use of appropriations
Augmentation of appropriations through use of miscellaneous receipts
Antideficiency Act implications
Advanced Appropriations Law Seminar
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3. Principles of Law The Purpose statute
Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law. 31 U.S.C. 1301(a) (4-6)
The Necessary Expense Doctrine (4-19)
The spending agency has reasonable discretion in determining how to carryout the purposes of the appropriation. (4-20)
Advanced Appropriations Law Seminar
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4. Principles of Law Necessary Expense Doctrine
Principles of Law: The Necessary Expense Doctrine (4-19)
Three tests must be met:
Makes a direct contribution to the appropriation being charged
Not prohibited by law
Not otherwise provided for in another appropriation or funding scheme
Advanced Appropriations Law Seminar
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5. Case Study 2 The Conference
Turn to Case Study 2 in the Handout Booklet
Read the general description of the issues in the case study
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6. Case Study #2 Reading Assignments
TABS
STUDENT
2A, 2B, 2G, & 2J ( ) 1
2C, 2D, 2H & 2J ( ) 2
2F & 2J ( ) 3
2E, 2I & 2J ( ) 4
Advanced Appropriations Law Seminar
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7. Case Study 2 The Conference
Facts
A military commander hosts a conference
Attended by government and non-government persons; multi-agency attendees
Commander has one-year appropriation
Identified in the Conference Report for purposes covered by the conference
No Reception and Representation money
No other specific authority
Registration Fees collected
Advanced Appropriations Law Seminar
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8. Case Study 2 The Conference
Facts
Types of costs:
Hotel conference facilities and related audio-video equipment rental
Conference books and materials; name plates; briefcases; mementos and plaques
Equipment display of a drone aircraft
Travel costs for nonfederal attendees
Advanced Appropriations Law Seminar
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9. Case Study 2 The Conference
Facts
Types of costs:
Jerseys for facilitators
Guest speaker costs (travel, honoraria)
Social function; No-host mixer/reception
Meals and refreshments
Commercial bus transportation
You are the certifying/approving official for all costs for this conference.
Advanced Appropriations Law Seminar
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10. Case Study 2 The Conference
The Process:
Read the Case; discuss it.
Assign the reading materials.
Start answering the Issues Questions.
Take 10 min. breaks individually or collectively every minutes. Lunch at 11:30
Be ready to start discussing the issues by 2:20
Minority opinions: talk it out, note it, move on.
Don’t assume anything …
Advanced Appropriations Law Seminar
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11. Case Study 2 The Conference
Answer questions in the Handouts Booklet
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12. Case Study 2 The Conference
On a sheet of paper complete the following:
The following charges are not being certified at this time:
Line # Description Amount
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13. Principles of Law Necessary Expense Doctrine
The Necessary Expense Doctrine (4-19)
Meetings and Conferences (4-37)
Government sponsored—no problem
Private associations, societies—rules apply
Advanced Appropriations Law Seminar
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14. Principles of Law Necessary Expense Doctrine
Attendance at meetings and conferences (4-37)
Private associations and societies:
No federal funds unless
Training Act applies (5 U.S.C. 4109)
Topics of interest to the agency (5 U.S.C. 4110)
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15. Principles of Law Necessary Expense Doctrine
Attendance at meetings and conferences (4-37)
Government sponsored meetings (4-41)
No significant legal problems with authority
Can’t pay for non-federal attendees;
Except
Persons rendering a direct service
Statutory Exceptions ( Dept’s of Labor, HHS, Education)
Advanced Appropriations Law Seminar
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16. Principles of Law Necessary Expense Doctrine
The Necessary Expense Doctrine (4-19)
Entertainment (4-100)
The Principle:
Appropriated funds may not be used to entertain federal or non-federal personnel without statutory authority
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17. Principles of Law Necessary Expense Doctrine
Entertainment (4-100)
Defined as an umbrella term: (4-102)
Food & drink
Receptions, banquets, etc.
Music, live or recorded; concerts
Artistic performances, dance, etc.
Recreation facilities; sports tickets
Morale and welfare facilities
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18. Principles of Law Necessary Expense Doctrine
Entertainment (4-100)
Exceptions: (4-101)
Government corporations
Donated funds; foundations
Commissions and boards
Where other statutory authority exists
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19. Principles of Law Necessary Expense Doctrine
Entertainment (4-100)
Specifically: Food (4-103)
Principle: “ ... as a general rule, appropriated funds are not available … to provide free food to employees at their official duty stations … ”
Exceptions: Where other statutory authority exists
Travel (5 U.S.C. 5702)
Training (5 U.S.C. 4109)
Award Ceremonies (5 U.S.C. 4501–4506)
Miscellaneous statutes (Safety, etc.)
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20. Principles of Law Necessary Expense Doctrine
Entertainment: Food (4-103)
At meetings, conventions, conferences, seminars, symposiums and etc. (4-108)
Non-government sponsored meetings (4-108)
Registration Fee
Not itemized: Pay it
Itemized: Food must be—Incidental, Important, Mandatory
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21. Principles of Law Necessary Expense Doctrine
Entertainment: Food at meetings
Government sponsored meetings (4-109)
Two types: Formal and Routine
Formal: (5 U.S.C )
Typically external; attended by government and non-government persons
Topics of broad interest to both
Significant events: Registration, speeches, panel discussions, formal agenda, etc.
Food must be—Incidental, Important, Mandatory
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22. Principles of Law Necessary Expense Doctrine
Entertainment: Food at meetings
Government sponsored meetings (4-109)
Two types: Formal and Routine
Routine:
Day-to-day; discussions of internal agency matters: No Food
Cultural Awareness Ceremonies: Small food samples permitted
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23. Principles of Law Necessary Expense Doctrine
Entertainment: Food in other contexts
Other notable matters involving food (4-110–111)
Bolger; GSA Light Refreshments; Commercial (bottled) Water; Refrigerators
Bolger Conference Center (4-110) B (1999)
Single, nonseparable charge for facilities and food
No evidence of attempts to avoid food prohibitions
Competitively priced with other similar available facilities
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24. Principles of Law Necessary Expense Doctrine
Entertainment: Food in other contexts
GSA Light Refreshments (4-111)
In January 2000, GSA authorized light refreshments at conferences that included travelers under the FTR 41 CFR & (2000)
In January 2003, GAO said GSA only half right B (2003)
GSA can authorize food for federal travelers
Not others
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25. Principles of Law Necessary Expense Doctrine
Entertainment: Food in other contexts
Commercial (bottled) water (4-119)
Not authorized under ordinary circumstances Comp Gen 698 (1938)
Permitted if public water supply is:
Tested and found to be unsafe (EPA standards)
Unavailable; interrupted
References: B (1992; B (1961); B (1989). DoD refer to DoD Reg , Vol 10, Chapter 12, Sec
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26. Principles of Law Necessary Expense Doctrine
Entertainment: Food in other contexts
Refrigerators, microwaves etc. (4-119)
Lunch/break room appliances are not authorized under ordinary circumstances 47 Comp Gen 657 (1968)
Permitted if:
Necessary for efficient accomplishment of mission B (1983)
No readily available eating facilities B (1997)
Necessary to ensure a healthy and safe workplace B (2004)
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27. Principles of Law Necessary Expense Doctrine
Entertainment: R& R Funds
Reception and Representation Funds (4-135)
Appropriated to most federal agencies
No precise definition
Designed to pay for hospitality events involving visiting dignitaries
Such as expenditures for entertainment, gifts
Because these funds are provided in limited amounts, Test 3 of the Necessary Expense Doctrine applies. (Not otherwise provided for ... )
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28. Principles of Law Necessary Expense Doctrine
Gifts and Awards (4-155)
The Principle: Gifts can rarely be justified. (4-155)
Statutory authority is necessary
Items given away in program promotion efforts (4-227)
Thin line between promotion and information (4-231)
Informing the public is a necessary agency function (4-227)
Promoting a program requires specific authority
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29. Principles of Law Necessary Expense Doctrine
Insurance (4-176)
The Principle: Generally, the government self insures it’s property and operations (4-155)
A few statutory exceptions exist
Employee Professional Liability Insurance PL (1999)
Non-statutory exceptions: (4-179)
Economies would result
Sound business practices; savings would result
Necessary to obtain services (loaned private property, etc.)
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30. Principles of Law Necessary Expense Doctrine
Wearing Apparel (4-266)
The Rule: Employees are expected to report for duty properly attired
Exceptions:
Unusual; necessary for safe accomplishment of mission; in hazardous situations 5 U.S.C (1946)
Uniforms 5 U.S.C. 5901
OSHA 29 U.S.C. 668 (1970)
Other statutory authority
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31. Principles of Law The Antideficiency Act
The Law Prohibits
Overobligation of an appropriation (31 U.S.C. 1341)
Obligating in advance of an appropriation (31 U.S.C. 1341)
Accepting volunteer services (31 U.S.C. 1342)
Overobligation of an apportionment, allotment or similar legal instrument (31 U.S.C. 1517)
Does not apply to allowances, operating targets, administrative fund ceilings, etc.
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32. Principles of Law The Antideficiency Act
The Law Generally Prohibits (6-103)
Augmentation of an appropriation
31 U.S.C. 1301(a) Purpose statute
31 U.S.C. 3302(b) Miscellaneous receipts statute
“ … An official or agent of the government receiving money for the government from any source shall deposit the money in the Treasury as soon as practicable … ”
Exceptions include: Where statutory authority exists; Repayments to the appropriation (6-108)
Advanced Appropriations Law Seminar
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33. The Conference Solution
Case Study 2
The Conference
Solution

34. Case Study 2—Solution Specific Issues: Issue 1
1a. May a federal agency host a meeting involving non-federal attendees?
Yes.
Advanced Appropriations Law Seminar
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35. Case Study 2—Solution
Specific Issues: Issue 1 1b. What is the authority? 5 U.S.C and 31 U.S.C. 1301(a); Necessary Expense Doctrine or other specific statutory authority.
Advanced Appropriations Law Seminar
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36. Case Study 2—Solution
Specific Issues: Issue 2 2a. By what authority may an agency pay travel and transportation costs of non-federal attendees? 5 U.S.C. 5703, 5 U.S.C and CG Decision B permit such payments when they are deemed necessary for a successful conference.
Advanced Appropriations Law Seminar
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37. Case Study 2—Solution
Specific Issues: Issue 2 2b. By what authority may an agency pay honoraria and travel expenses to guest speakers? 31 U.S.C. 1301(a), 5 U.S.C. 4110, 5 U.S.C. 5703, A and B
Advanced Appropriations Law Seminar
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38. Case Study 2—Solution Specific Issues: Issue 2
2c. Is the commercial bus transportation an authorized expense? What is the authority?
Yes, for trips required to conduct authorized conference events 31 U.S.C. 1301(a)
No for such events as the golf outing
Require the project officer to give a detailed breakout of bus usages
Advanced Appropriations Law Seminar
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39. Case Study 2—Solution
Specific Issues: Issue 3 3a. May the command incur obligations for conference handouts in three-ring binders, tablets and registration table supplies? Yes. 31 U.S.C. 1301(a). These are normal operating expenses incidental to most conferences.
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40. Case Study 2—Solution
Specific Issues: Issue 3 3b. May the command furnish a “secure briefcase” to each attendee to keep after the conference has concluded? Not without authority. They would be classified as gifts.
Advanced Appropriations Law Seminar
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41. Case Study 2—Solution
Specific Issues: Issue 3 3c. May the command pay for mementos to speakers and distinguished civilian attendees? No. These are expenses properly charged to reception and representation funds which are not available to the command.
Advanced Appropriations Law Seminar
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42. Case Study 2—Solution
Specific Issues: Issue 3 3d. What is the authority? There is no authority for these items. Without specific authority or R&R funds, payment for these items would be illegal.
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43. Case Study 2—Solution
Specific Issues: Issue 4 4a. May the command pay shipping costs for a private company to send equipment for display at the conference? Yes
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44. Case Study 2—Solution
Specific Issues: Issue 4 4b. What is the authority? 31 U.S.C. 1301(a); Necessary Expense Doctrine
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45. Case Study 2—Solution
Specific Issues: Issue 4 4c. May the command pay an insurance premium to insure the property at the insistence of the company? Yes, if there are no other alternatives
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46. Case Study 2—Solution
Specific Issues: Issue 4 4d. What is the authority? B (1964)
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47. Case Study 2—Solution
Specific Issues: Issue 5 5a. May the agency pay for the ‘no host mixer/reception’? No. If substantial conference functions were conducted during the mixer and it met the other requirements of B , payment may be allowed. There is no evidence in the case study that substantial conference functions were conducted in conjunction with the ‘no-host mixer’.
Advanced Appropriations Law Seminar
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48. Case Study 2—Solution
Specific Issues: Issue 5 5b. What is the authority? There is none unless the requirements of B were met
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49. Case Study 2—Solution
Specific Issues: Issue 6 6a. May the agency pay for the ‘by invitation only’ social function? No. B can’t cover this one
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50. Case Study 2—Solution Specific Issues: Issue 7
7a. Should the 67 federal travelers be reimbursed the registration fee?
Not if the funds are used to pay for the entertainment functions. If the fees are use to pay for such functions as refreshments or supplies, then the registration fees are properly reimbursable to the travelers.
Realistically the travelers will be filing their travel vouchers upon return to their home locations and certifying officials there will not be aware of the conference details.
Advanced Appropriations Law Seminar
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51. Case Study 2—Solution
Specific Issues: Issue 7 7b. May the 187 local federal attendees be reimbursed the full amount of the registration fee? Not if the funds are used to pay for the entertainment functions. If the fees are use to pay for such functions as refreshments or supplies, then the registration fees are properly reimbursable.
Advanced Appropriations Law Seminar
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52. Case Study 2—Solution
Specific Issues: Issue 7 7c. Should the 211 non-federal attendees be furnished free meals and refreshments using appropriated funds? Yes for the official, non-entertainment functions which qualify under B
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53. Case Study 2—Solution Specific Issues: Issue 7:
7d. May the 187 local federal attendees be furnished free meals and refreshments using appropriated funds?
Yes for those official, non-entertainment related, functions. B
The 67 federal travelers should report any free meals on their travel vouchers for appropriate per diem offsets
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54. Case Study 2—Solution Specific Issues: Issue 7
7e. What is the authority? B
The ‘no-host mixer’ and the golf outing are out
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55. Case Study 2—Solution Specific Issues: Issue 8
8a. Under what conditions may the agency purchase wearing apparel for federal employees?
Safety (OSHA),
Administrative Officers Expenses Act 1946: Unusual items, necessary for safe and successful accomplishment of the mission involving hazardous conditions, and
Uniforms.
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56. Case Study 2—Solution
Specific Issues: Issue 8 8b. May the agency provide jerseys for the conference facilitators? None of the above three conditions are present. The jerseys are not authorized.
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57. Case Study 2—Solution
Specific Issues: Issue 8 8c. What is the authority? None. The employees should be required to return the items for disposition under to property regulations.
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58. Case Study 2—Solution
Specific Issues: Issue 9 9a. Does the Federal Acquisition Regulation (FAR) provide a means to ratify purchases that are not in accordance with law and procedure? Yes
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59. Case Study 2—Solution
Specific Issues: Issue 9 9b. Who has the authority to ratify purchases which appear to be unauthorized commitments? The head of the contracting agency; may be delegated to the contracting officer. The certifying officer should refer all questionable matters to contracting officials for a determination under the FAR.
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60. Case Study 2—Solution
Specific Issues: Issue 10 The command collected $16,000 in registration fees. 10a. Generally, what is the rule regarding money received by and for the government from outside sources? Monies received outside appropriations must be deposited in the Treasury as miscellaneous receipts
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61. Case Study 2—Solution
Specific Issues: Issue 10 The command collected $16,000 in registration fees. 10b. What is the governing statute? 31 U.S.C. 3302(b), the Miscellaneous Receipts statute
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62. Case Study 2—Solution
Specific Issues: Issue 10 10c. How does the NIH case (B ) apply regarding the use of conference registration fees? What effect does the Defense Authorization Act for 2007 have on the collection of the fees? The NIH decision affirms that federal agencies cannot, without statutory authority, engage in the sale of goods or services to the public and retain those proceeds for agency purposes without statutory authority.
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63. Case Study 2—Solution Specific Issues: Issue 10
10c. How does the NIH case (B ) apply regarding the use of conference registration fees? What effect does the Defense Authorization Act for 2007 have on the collection of the fees?
The NIH decision affirms that federal agencies cannot engage in the sale of goods or services to the public and retain those proceeds for agency purposes without statutory authority
But, the 2007 DoD Authorization Act gives DoD the authority to collect and retain conference fees up 100% of the costs
Advanced Appropriations Law Seminar
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64. Case Study 2—Solution Specific Issues: Issue 10
10d. What should be the disposition of the money in the bank account?
Because this was a DoD sponsored conference, the fees collected may be retained and used to offset conference costs.
Since the amounts were collected by the DoD for DoD purposes and the attendees were reimbursed for the charges, the amounts may not be used for unauthorized functions or purchases.
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65. Case Study 2—Solution
Prepare a list of the charges you would not certify for payment unless ratified by an authorized contracting official.
Line #
Description
Amount
1.6
No-host mixer reception
$ 4,000
2.1
Secure briefcases
TBD
2.2
Mementos and plaques to guest speakers 6
Golf social outing
$ 12,000 7
Bus contract for unofficial trips 8
Facilitator jerseys
$ 1,558
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66. Case Study 2—Solution Specific Issues: Issue 11
If the command had contracted with a private firm to manage the logistics of the conference under a no-cost contract would your answers be different?
Assuming the command had not contracted for the social events, the jerseys, briefcases and mementos to speakers the contractor would have been providing those amenities voluntarily. However, an agency may not request a contractor to provide unauthorized amenities under such an arrangement. If voluntarily provided by the contractor, the registration charge is reimbursable to all attendees.
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67. Case Study 2—Solution
Specific Issues: Issue 12 12a. Assume the command conducted the conference after and did not obtain prior approval for the conference pursuant to the OMB and DoD memos relating to conferences (refer to Tab 2J in the Participant Manual). Does the DoD memo impose legally binding restrictions on the use of DoD appropriations for conference expenses? Yes. The Administrative Procedures Act establishes that a properly imposed restriction on an official’s discretion is attached to the applicable law as if Congress itself had imposed the restriction in the Act. Thus, when DoD prescribed limitations on the use of appropriations for conferences it implicitly imposed a 31 U.S.C. 1301(a) restriction on DoD appropriations. A violation of 31 U.S.C. 1301(a) can rise to a reportable violation of 31 U.S.C. 1341(a)(1).
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68. Case Study 2—Solution Specific Issues: Issue 12
12b. Would any of the expenses for the conference be legal? No
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69. Case Study 2—Solution Specific Issues: Issue 12
12c. If not, is there a potential reportable Antideficiency Act violation?
Yes, as mentioned above the ADA would have been violated. While the DoD memo does not address retroactive waivers of the DoD policy (nor does the OMB memo) presumably the command could request same. If granted, the legitimate expenses of the conference would be legal. The illegitimate expenditures would still have to be addressed in a probable ADA investigation.
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70. Case Study 2—Solution Conclusion The conference was legally held.
Purchases classified as gifts and entertainment are prohibited.
Contracts should only be awarded for legitimate appropriated fund purposes. Amounts for such items as unauthorized food, mementos, social outings and so forth must not be included in the contracts.
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71. Case Study 2—Solution Conclusion
Clothing may only be purchased with statutory authority. No authority for the jerseys exists.
Payments for travel of nonfederal persons are authorized if, (1) necessary to ensure the success of a formal government sponsored conference and/or, (2) they are performing a direct service benefiting the USA.
Money collected by the government outside appropriations may not be credited to the appropriation without statutory authority.
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72. Case Study 2—Solution Conclusion
Use of a no-cost contract to accomplish conference functions is authorized. As such a registration/attendance fee charged by the contractor would be reimbursable. Agency officials should not request unauthorized amenities from the contractor.
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73. Case Study 2—Solution Conclusion
Money to pay for unofficial events (no host mixer, golf outing, etc.) may be collected on a voluntary basis outside the purview of the US government.
When done so:
The voluntary contributions are not collected ‘for the United States’ and thus not subject to 31 U.S.C. 3302(b)
The subsequent payments are then accomplished outside the terms of a government contract
The amounts would not be reimbursable to the attendee as “registration/conference fees”
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74. Case Study 2—Solution This concludes Case Study Number 2
The Conference.
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