Fiscal law

Army Lawyer, Jan, 2005 by James Dorn, Bobbi Davis, Andrew Kanter, Kevin Huyser, Karl Kuhn

Purpose

Something Cooking in the Kitchen: Comptroller General Approves Use of Appropriated Funds for Kitchen Appliances

Those following GAO appropriations decisions may be aware that until very recently, the GAO generally viewed workplace food storage and preparation equipment as a "personal expense." Specifically, under the "necessary expense" (2369) analysis, the GAO sanctioned the use of appropriated funds to buy food storage and preparation equipment only when the purchase was "reasonably related to the efficient performance of agency activities, and not just for the personal convenience of individual employees." (2370) This situation generally arose only when no commercial eating facilities were available in the location, (2371) or when employees worked extended hours and restaurants were not open during much of this time. (2372)

On 25 June 2004, the GAO revisited this issue and determined that regardless of the availability of commercial eating facilities, food storage and/or preparation equipment reasonably related to the efficient performance of agency activities. Thus appropriated funds could be spent for these items. (2373)

The decision responded to a request from U.S. Pacific Command (USPACOM) concerning the use of appropriated funds to purchase refrigerators, microwave ovens, and commercial coffee makers for central kitchen areas in its new command building. (2374) The new facility had twenty "interdivision kitchen areas" complete with sinks, cupboards, and storage cabinets. In the interests of fire safety, USPACOM directed that building personnel could not have personal coffee makers in their workspaces. Accordingly, USPACOM installed commercial grade coffee makers into the existing plumbing in the kitchen areas at a cost of $12,210.95. (2375)

Supporting its decision, the GAO observed that these items reasonably related to workplace safety in that, as a result of fire safety measures, employees were not allowed to have coffee makers in their workspace areas. (2376) However, the opinion went beyond the issue of safety. The GAO noted that providing such equipment resulted in benefits for the agency, "including increased employee productivity, health, and morale, that when viewed together, justify the use of appropriated funds to acquire the equipment." (2377) Further, the GAO observed that purchasing such equipment "is one of many small but important factors that can assist federal agencies in recruiting and retaining the best work force and supporting valuable human capital policies." (2378)

Moving on from food preparation and storage equipment to food itself, the GAO recently determined that appropriated funds were not available to pay for "samplings" of food provided in support of an ethnic observance when the samplings amounted to a full buffet lunch. (2379)

The Army COE requested the GAO provide a decision regarding the purchase of food for a Black History Month program. (2380) The program's flyer characterized the food as a "sampling." Nevertheless, the program was scheduled from 11:30 a.m. to 1:30 p.m., and the food provided included, among other offerings, smothered chicken, fried fish, pan-chopped barbeque, cabbage, string beans, corn bread and rolls, potato salad, peach cobbler, and pecan pie. The total cost for the food came to $399.12. Needless to say, the COE's certifying officer denied the request for reimbursement. (2381)

In its decision, the GAO first cited the time-honored rule that appropriated funds are not available to purchase food for government employees. (2382) Turning to an established exception, the GAO observed that agencies may use appropriated funds to pay for samples of ethnic food "prepared and served as an integral part of a celebration intended to promote EEO objectives by increasing employee appreciation for the cultural heritage of ethnic groups." (2383) However, in this case, the COE's program went beyond a "sampling" and constituted a full meal. Specifically, the GAO observed the food was consumed during lunch time and was provided in an amount more consistent with a "meal" than a "sampling." (2384) Because appropriated funds are generally not available to purchase food for government employees, by offering more than a sampling of food, the COE moved beyond the exception and into the general prohibition. Thus the COE could not fund costs associated with the program with appropriated funds. (2385)

The GAO's decision does not offer much meat (pun intended) as to where to draw the line between a "sampling" and a "meal." However, the GAO cited several factors, to include: (1) when the food was offered (i.e., during lunch time); (2) the amount of food offered; and (3) whether the food offered "represented all of the various courses that would constitute a full meal, ranging from breads and vegetables to meats and deserts." (2386) Additionally, the GAO noted the CEO did not have a standard operating procedure for cultural awareness programs, and lacked evidence that the COE's EEO Director made a written determination that "the program will advance EEO objectives and make the audience aware of the cultural or ethnic history being celebrated." (2387)