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Gift Cards!?


Eagle93

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To me, gift cards are a clear fiscal appropriations violation. It's like buying cash. I look at the law and GAO decisions and I see that gift cards would only be allowable, maybe, in a rare and specific situation where there is a statutory requirement for a particular specific program, and the gift cards are essential to achieve that statutory responsibility. It's a very narrow scope.

So I get a package for gift cards that does not in any way fall within that narrow range of acceptability. I as a CO would not sign a procurement of gift cards at any dollar value, much less a high dollar value. Wouldn't touch the package with a 10ft poll. Even as a CS just pushing the paper, I wouldn't want my name on that thing. But there is immense political pressure to make things like this happen. Our "QA" staff said it was perfectly fine, said there was no need to contact legal. I contacted legal anyway and they said no way is this buy okay. I got scolded for "jumping the chain". Despite the stinkeye, I killed the package.

I would expect our leadership to kill things like this, instead of passing it down to us and hoping we'll do it so that they can be a good politician and get head pats.

I cannot do 1102 work in that environment. Is this common? Are there shops out there that actually encourage and facilitate good contracting?

 

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Instead of an answer, I’m volunteering advice.  That’s don’t kill things on your own unless you’re at a sufficiently high level in your organization.  I can see why you got “scolded” for jumping the gun.   When the issue came up, I would ask management what are they trying to accomplish with the cards.  Go through your supervisory chain.  Show initiative by saying you found a potentail problem and you want all responsive parties to be aware of limitations you found.  Once you know the objective, facilitate discussions to find a proper solution.

That way you get known as a “go to” person instead of one that finds ways things can’t be done.  If there’s no feasible way of achieving management objectives, they likely appreciate you making them aware of it and why.   One thing management doesn’t like are people reporting them without explaining what the problem is.

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5 hours ago, Eagle93 said:

I would expect our leadership to kill things like this, instead of passing it down to us and hoping we'll do it so that they can be a good politician and get head pats.

I cannot do 1102 work in that environment. Is this common? Are there shops out there that actually encourage and facilitate good contracting?

If you find yourself criticized for doing the right thing for the right reasons, get out of that place ASAP. Find a place that rewards people who make principle-based decisions for the right reasons. The culture you work in is a time-bomb, ticking away, waiting to see how many careers will be ruined when the bomb finally explodes.

(I'm not a government employee but I've been in various non-governmental organizations over a long career.)

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I knew something about gift cards was familiar.  I was at Commerce when they received this GAO decision

B- 310981, National Telecommunications and Information Administration--Gift Cards for Respondents to the Converter Box Coupon Program Survey, January 25, 2008

https://www.gao.gov/products/B-310981

The key point is this quote from GAO - “

Quote

The benefit accruing to the government from the use of the gift cards outweighs the personal nature of the expense involved.

So this may not be an insurmountable barrier if the agency can support this.

Also several agencies use gift cards as “on the spot” awards to employees for exceptional work.  Managers are authorized to give these as immediate rewards as immediate recognition for a job well done 

We don’t know anything about Eagle’s situation so these may not be relevant.  

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On 3/15/2020 at 10:32 PM, formerfed said:

...B- 310981, National Telecommunications and Information Administration--Gift Cards for Respondents to the Converter Box Coupon Program Survey, January 25, 2008

https://www.gao.gov/products/B-310981

From that referenced Decision: “As a general matter, appropriated funds are not available for personal items, such as gift cards. B-247966, June 16, 1993. However, we have not objected to the use of appropriated funds to cover what would otherwise be personal items where the benefit accruing to the government outweighs the personal nature of the expense. See, e.g., B-309604, Oct. 10, 2007; B-309715, Sept. 25, 2007. Accordingly, in certain circumstances an agency's appropriated funds may be available to provide items that may otherwise be personal in nature when these items serve as incentives to acquire information necessary to the achievement of the agency's statutory goals.“

The merits or propriety of the gift card procurement are’t the point of this thread. Legal93 sought and obtained advice from Legal counsel. The above quote from the referenced opinion is an exception from the general rule...

It’s been a little over two years since Legal Eagle began working as an 1102.  I read through Eagle’s previous posts here. I don’t know if Eagle is still working in the same office. However, I could understand why Eagle didn't run the question up the flagpole.

My initial question to myself was why didn’t Eagle ask the applicable contracting officer about the intended purchase? 

At any rate, after reviewing earlier posts,  I wonder why Eagle would remain in the same office.

On 3/15/2020 at 12:36 PM, Eagle93 said:

I cannot do 1102 work in that environment. Is this common? Are there shops out there that actually encourage and facilitate good contracting?

I honestly hope that, from the situations that Eagle has described,  Eagle doesn’t work for a West Coast USACE District (I say that only because Eagle has indicated that he/she works West of theRockies).m

Eagle93, in response to your actual question, the Army Corps of Engineers, in general, has some very honest and decent contracting offices across the Country.

In general, I have found that the USACE stresses honesty and integrity. Every District also has an Office of Counsel with an Ethics officer appointed  within that office. Each USACE office and personnel involved in acquisitions participate in mandatory annual ethics training and refreshers.

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ji20874’s comment about written legal opinions is spot on. The hallway answer one person gets from a lawyer isn’t official and may not even address the actual issue based on input the lawyer received.  When legal advice is needed on an important subject, both the request and response needs to be in writing.   Procurement office management needs to make the request after verifying the full intent and purpose of the requesting offices need.  In this instance, a decision to acquire gift cards isn’t likely spontaneous and made by a low level in a program office organization.  It was probably made at a senior management level and based upon circumstances and information not apparent just a requisition package.  All that needs captured and provided in the request for a legal opinion.

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2 hours ago, joel hoffman said:

 

I honestly hope that, from the situations that Eagle has described,  Eagle doesn’t work for a West Coast USACE District (I say that only because Eagle has indicated that he/she works West of theRockies).

Numerous contracting offices are East of the Rockies.  The Army at Ft Huachuca of which part with with APG, Ft Irvin, Yuma PG, interior has several including a branch of National Business Center, GSA, Energy, Justice, Missile Command, AF at Davis M,  Forest Service, Agriculture.  Those are just some that come to mind.

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Thanks everyone for the responses,

To address some of your points and questions. The package that was submitted to me was incredibly weak for something requesting  a dollar value of 6-figures worth of gift cards, so I tried working with the requiring activity to find out more about the requirement and their authority/justification for such a purchase. Also, for accountability purposes, how they would track the cards and where and how they get distributed. I wanted to make sure that I'm not signing my name on something that's going to be a free for all cash grab on the program side. The answers were incredibly weak and there was no tracking system in place. I tried working with the Requiring Activity on these things for an extended period, and it never got better, if anything it got more murky.

Yes I wrote my legal and regulatory findings and submitted it up the chain. I expressed my concerns about the program's shaky justification and lack of planning for accountability. My chain of command squirmed and told me to contact our QA. I did that. QA got back to me very quickly, telling me to go ahead, it's fine, nothing out of the ordinary, no need to contact legal. That last part seemed odd to me, so I contacted legal anyway and was told a firm no. I guess me "killing it" was me simply saying I'm not comfortable with signing this so I'm not going to sign it and it not going anywhere. My chain didn't say anything to me. No one up the chain said, "This is perfectly fine. I'll sign it myself." I'm not gonna hold the bag on it, and I guess my bosses don't want to either.

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Yes, the response from legal to me was in writing.

The only feedback I got from my chain during this whole thing was that it was taking too long and it needed to get awarded. 

Another question I had for my chain that never got answered was how to compete it, the RA had a very specific gift card provider they wanted. 

I saw those older GAO reports from around 2008 that were a little softer on gift card purchase, but still required a specific statutory necessity, and the gift cards as an explicit part of the program. Newer decisions are more emphatically saying no to cards that are only incidental to a program, not specifically essential. Reference from 2012: https://www.gao.gov/products/D02888   

Consumer Product Safety Commission--Purchase of Gift Cards

B-323122: Aug 24, 2012

image.png.e41e5dc98ebb78107f672d6c5f0eaf6c.png

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I mentioned west coast because Eagle93 mentioned in other thread(s)  that he/she is in that region and wants to stay out on West Coast. Having been in the AF, I wouldn’t have gone to work for the Military other than with the USACE. They were head and shoulders above base level BCE and contracting offices back in the 70’s-2000’s. 

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16 hours ago, Eagle93 said:

Yes, the response from legal to me was in writing.

The only feedback I got from my chain during this whole thing was that it was taking too long and it needed to get awarded. 

Another question I had for my chain that never got answered was how to compete it, the RA had a very specific gift card provider they wanted. 

I saw those older GAO reports from around 2008 that were a little softer on gift card purchase, but still required a specific statutory necessity, and the gift cards as an explicit part of the program. Newer decisions are more emphatically saying no to cards that are only incidental to a program, not specifically essential. Reference from 2012: https://www.gao.gov/products/D02888   

Consumer Product Safety Commission--Purchase of Gift Cards

B-323122: Aug 24, 2012

image.png.e41e5dc98ebb78107f672d6c5f0eaf6c.png

You asked the right questions of the program office.  The lack of sound responses or justification for the purchase seem to confirm the reasonableness of your actions.

it doesn’t appear that you are going to get more answers to your questions, only more critiques from us, the Peanut Gallery. I plead guilty, too. IT wasn’t clear to me if you were the Contracting Officer for the action. I would probably have at least cleared it with the K.O in this instance.

Disclosure: As contract administrator and as Chief of Contract Admin in several offices, I stopped various crazy or improper or nonsensical proposed changes by ACO’s, or project managers, sometimes without first consulting with the KO. However, we had a close working relationship and the KO’s relied upon me and my office to review all mod actions. We also closely worked with Office of Counsel.  

You’re probably too young to know what the term “Peanut Gallery” refers to.  They were the kids in Buffalo Bill’s on-stage gallery on the nationally broadcast  Howdy Doody TV Show. Kinda like the audience on “Let’s Make a Deal”.(The term actually traces back to Vaudeville days but I wasn’t alive then and there was no TV).

Whenever someone blows off steam here, they pretty much open themselves up to get second guessed. 🤠

Edited by joel hoffman
Expanded original explanation
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This advice is coming way late but I would have set up a meeting with everyone involved.  That includes the program office, legal, budget or comptroller since they are experts on appropriations, stakeholders like public affairs or whatever is impacted by the purpose of the cards, and contracts including the office head.  With a six figure amount involved, it’s important enough to get all the issues out on the table.  

There must be a solid reason for the cards.  Otherwise it wouldn’t be requested especially in that dollar amount.  It may just be the people Eagle contacted don’t know much themselves.  If the cards can’t be explained and justified, fine.  But if there’s a valid reason and a senior manager finds out the procurement office is saying nope, everyone looks bad.

A meeting gets everything out in the open and complete understanding among all the players

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