Hello again WIFCON,

Question: Can an agency use appropriations to procure transportation services to transport members of the public from one agency location to another? Please provide any case law, or regulations either supporting, or rejecting this practice.

Scenario - Agency use to perform certain services for the public via temporary remote sites. Remote sites are no longer available. Agency would like to accommodate members of public who are unable to travel to the necessary location due in part because of the distance between their home, and location where service is now performed.

Thanks in advance!

I don't think anyone can answer that question without understanding the precise appropriation that is being proposed to fund it. Your agency's fiscal law attorney(s) should be able to answer this question for you.

I am aware that the TVA (or NPS?) transports members of the public by charter boat, as follows: When the TVA dammed up all the rivers in Tennessee, there were some hilltop burial sites left above water -- now, these hilltops are islands -- the TVA transports descendants of the dead once a year to ths island, and will continue to do so until the interested descendants are themselves dead. But you cannot rely on this anecdote for your situation -- you need to follow Oyster's advice.

I don't think anyone can answer that question without understanding the precise appropriation that is being proposed to fund it. Your agency's fiscal law attorney(s) should be able to answer this question for you.

This was only a general question. As in, is this even allowed for, if so, under what authority? If not, provide something that concludes this. In terms of the "precise appropriation" being proposed, I do not know, short of annual appropriations. Again, this is a general question to see if this can even be done. When you say "precise appropriation," what do you mean? In addition, the question/scenario was proposed to our counsel. I figured I would be proactive and research for myself.

GOVCO, there is no answer to your question (or is it a tasking?), other than you can do whatever your appropriation language allows you to do. Change the subject to food, for example -- some agencies can buy light food for members of the public because doing so helps them meet their mission requirements and is within their interpretations of their appropriations language -- other agencies cannot, because they cannot stretch that far. If meeting your mission objectives requires you to transport members of the public from one place to another, and if your appropriations language allows for it, then you can do it. If not, then you can't. There is nothing in the Federal Acquisition Regulation (FAR) that will answer your question, and citations of case law (or GAO appropriations decisions) will have no value without any context of similar facts.

Your agency attorney is already aware of your facts. If you are a contracting officer, you can rely on his or her opinion. By the way, it seems to me that his or her opinion will be of more importance to the funds certifying offical than to the contracting officer, as this is an appriopriations law question, not a contracting question, and the answer will depend on your appropriation language. If the use of funds for this purpose is appropriate, then awarding contracts to charter a bus (or whatever) is easy.

Your "annual appropriation" is the "precise appropriation" to which Oyster makes reference, if that is where the money will come from. If you want to do research, you need to read the appropriation language.

GOVCO: Please understand, I wasn't trying to be flippant. The answer to your question cannot be answered by "regulations," generally. Rather, assuming that there is nothing that specifically addresses this in the language of whatever appropriation act provides these funds to your agency, your counsel will have to make a determination regarding whethor or not this is an appropriate use of your appropriated funds. (I presume this comes from your agency's equivalent of "operations and maintenance" appropriation that is found within DOD).

Absent express statutory language allowing, or prohibiting, the use of your funds for this purpose, the analysis typically defaults to what is known as the GAO-created "necessary expense doctrine." In this regard, I recommend that you look at the GAO Red Book ("Principles of Federal Appropriation Law"), Volume I, Chapter 4. The explanation of the "necessary expense doctrine" is set out at Subsection "B" starting on page 4-19. I think that will allow you to discuss this issue with greater precision with your fiscal law attorney.

GOVCO: BTW, the Red Book is free online at GAO's website. Volume I can be found here: http://www.gao.gov/special.pubs/d04261sp.pdf

Good luck.

Thanks ji20874 and Oyster. While I realize my scenario was lacking facts, unfortunately, I wasn't given much myself. I do appologize for the lack of specifics. I appreciate your comments and information.

GOVCO: You're welcome. In my experience, fiscal law issues are far more frustrating than contract law issues because the rules are less clear and the guidance (statutory, regulatory and policies) are less helpful. Further, unlike contract law issues, there are less decisions on point as compared with contract law's GAO, BCAs, COFC, CAFC opinions. The Comptroller General provides some guidance, but in my opinion, not enough.