OFFICE FURNITURE BUY OVER $5000

Check this GAO Report out (see page 6)  for a description of the prohibition on buying office furniture for Presidential appointees exceeding $5,000, as it existed between 1986 and 1992 by way of Annual Appropriations Acts. 

https://www.gao.gov/assets/220/216417.pdf

joel hoffman said:

Check this GAO Report out (see page 6)  for a description of the prohibition on buying office furniture for Presidential appointees exceeding $5,000, as it existed between 1986 and 1992 by way of Annual Appropriations Acts. 

https://www.gao.gov/assets/220/216417.pdf

Thank you, Joel.  

Reading that also led me to search out a similar 2016 GAO Report for a different agency... In which GAO added reporting of an Anti-Deficiency Act violation to the mix as well: https://www.gao.gov/mobile/products/D13774.

This serves as an apt illustration that it is not enough alone to know the regulation (FAR and agency Supplements),...see FAR 1.602-1 (b) “No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met.”

In the spirit of prevention, I could stand to learn more of other rules or unknowns in our sphere, which are not in regulation...Anyone know what else what might be lurking in the trees just out of sight?

A search of the United States Code discovered no statute limiting furniture purchases to $5,000.

Below, in the quote box, is Section 710 from Public Law No: 115-31, the Consolidated Appropriations Act, 2017.  That is last year's appropriation law which can be searched for the word "redecorate."  I didn't check but P. L. 115-31 may include HUD and be the cause of the NYT article.  You can find the appropriation laws for 2018 here.  Because of all the continuing resolutions, I couldn't easily reconstruct what happened for FY 2018.  Someone else will have to endure that.

Note:  To find Section 710, do a chrome search for the word "redecorate."  It will pop up.  There is more than one Section 710 in that law, probably because it is consolidated. 

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Sec. 710. During <<NOTE: Notification.>> the period in which the head of any department or agency, or any other officer or civilian employee of the Federal Government appointed by the President of the United States, holds office, no funds may be obligated or expended in excess of $5,000 to furnish or redecorate the office of such department head, agency head, officer, or employee, or to purchase furniture or make improvements for any such office, unless advance notice of such furnishing or redecoration is transmitted to the Committees on Appropriations of the House of Representatives and the Senate. <<NOTE: Definition.>> For the purposes of this section, the term ``office'' shall include the entire suite of offices assigned to the individual, as well as any other space used primarily by the individual or the use of which is directly controlled by the individual.

If you look at p. 6 in the footnote to this GAO report that Joel mentioned, you will find similar similar sections of appropriations bills dating back to the 1980s.  That is 30 years ago.  Because of that, there may be the same section added to appropriation bills since then.  

If anyone is interested in the article that the OP mentioned, it may be here since that is about office furniture, etc.

Bob:

Your post is confusing. Does such a limitation appear in any currently applicable appropriations law? If so, please cite the public law.

Vern:

I redid my post.  It includes the Consolidated Appropriations Act for 2017, Public Law 115-31. Since the GAO report mentioned law back to the 1980s and I found a 2017 appropriations law with similar language, I assume Congress has pasted that section in some, if not all, appropriations laws during that period. I am not going to search for all of them because of the time involved.

My last try on appropriations legislation.  Here is the 2018 appropriations scorecard kept by congress.gov .  The first line that you see is: Omnibus Appropriations.  Below is the paragraph explaining what H. R. 3354 is.

Quote

H.R.3354

Notes: H. Res. 500, as adopted by the House on 9/06/2017, combined all 12 House regular appropriations acts into H.R. 3354, a bill initially reported out by the House Appropriations Committee as the stand-alone FY2018 Interior measure on 7/18/2017.  Eight of the bills had not been considered on the floor yet: Divisions A-Interior, B-Agriculture, C-Commerce, Justice, Science, D-Financial Services and General Government, E-Homeland Security, F-Labor, HHS, Education, G-State-Foreign Operations, H-Transportation-HUD.  Four FY2018 House appropriations bills that were earlier combined by division into H.R. 3219 and passed by the House on 7/27/2017, Defense, Legislative Branch, Military Construction-VA, Energy-Water and a division on Homeland Security Border Infrastructure Construction became divisions I-M in the measure (H.R. 3354) which passed the House on 9/14/2017.

Here is H. R. 3354.  That bill has been sleeping in the Senate since 9/27/2017 and waiting for a vote.  Guess what?  It never got passed because fiscal year 2017 was ending in 3 days.  However, if it did, it would contain the following section about furnishings.

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SEC. 710. During the period in which the head of any department or agency, or any other officer or civilian employee of the Federal Government appointed by the President of the United States, holds office, no funds may be obligated or expended in excess of $5,000 to furnish or redecorate the office of such department head, agency head, officer, or employee, or to purchase furniture or make improvements for any such office, unless advance  notice of such furnishing or redecoration is transmitted to the Committees on Appropriations of the House of Representatives and the Senate. For the purposes of this section, the term ‘‘office’’ shall include the entire suite of offices assigned to the individual, as well as any other space used primarily by the individual or the use of which is directly controlled by the individual.

Now go down to the next category on the Congress.gov scorecard and look at Continuing Appropriations.  Start at the bottom of that box.  You will see that Congress started on continuing resolutions before it could pass the Omnibus Bill in the Senate.  As a continuing resolution, they continue--until next week--when the government closes down again.  That is, if I read it right.  I could not find Section 710 in any continuing resolution and don't know if a continuing resulotion should include it.  I don't even know what to look for in that crap.  Maybe we can find an approrpiations guru to explain it all.  I'M DONE.

Now, here is what someone--anyone--can do for me.  Go back to the contracting sections that I have posted for the last 3 years of the NDAAs.  That may be around 220 sections.  Develop a spreadsheet that lists the date each section requires a regulation to implement it.  You may have to get a little creative in doing it.  Now, how many times did a failure to implement a contracting regulation conflict with a requirement of law?  I'm waiting.

Sounds like a good job to assign to the (current) GAO to figure out, huh?  🤓🤓🤓

In short, there is nothing in the U.S.C., and we at Wifcon don't know if there is anything currently applicable in uncodified legislation. Moreover, the language that has been quoted from past legislation is somewhat obscure as to its practical effect. It's doesn't seem to say that an agency cannot spend more than $5,000; it seems to say that it cannot do so until it has notified Congress. It doesn't say that the agency must wait for permission or approval.

Slow down Vern, FY 2018 is not done yet and H.R. 3354, the Interior and Environment, Agriculture and Rural Development, Commerce, Justice, Science, Financial Services and General Government, Homeland Security, Labor, Health and Human Services, Education, State and Foreign Operations, Transportation, Housing and Urban Development, Defense, Military Construction and Veterans Affairs, Legislative Branch, and Energy and Water Development Appropriations Act, 2018  with Section 710 awaits a Senate vote.   I don't know if any of the continuing appropriations laws specifically implement H. R. 3354.  If they do, Section 710 is Public Law.  It all depends on the wording of those things.  The Consolidated Appropriations Act for 2017, Public Law 115-31 with Section 710 should appear somewhere in the U. S. C. since it is Public Law.  Unfortunately, I don't know where it would be encoded.  Maybe you could help with that. 

None of this back and forth between us helps the OP.  He's caught in continuing resolution hell.  Im going to put my response to the OP in a quote box:

Quote

The original poster may have referred to a past action by the HUD Secretary.  That action may have been covered by the Consolidated Appropriations Act for 2017, Public Law 115-31 if that action was taken prior to the end of September 2017.  As I mentioned in the first paragraph, depending on the wording of the continuing resolutions, that requirement to report may or may not still be in effect.  I have no idea because I could not find it but I don't know what I was looking for.  That doesn't mean it does not exist in them.  Even if it isn't and the Senate takes up H. R. 3354, passes it, and the President signs it, the OP must look for Section 710.  The safest thing is to discuss it with the agency General Council's office, mention what Joel and I have shown here in our various posts, and if somone wants a purchase or redecoration of over $5,000, follow the reporting instructions in Section 710.  You will probably have to get some agreement to report from your General Counsel and/or higher ups.  Since Congress cares about such an event in the era of trillion dollar annual deficits, why not tell them.

I think 710 is a stupid section which was probably added to annual appropriations when someone got caught redecorating decades ago.  I seem to remember that someone did get caught buying shot glasses many years ago.  At least that appointee didn't drink out of the bottle. 

Vern, you are correct.  The past sections that I found in Public Laws did and current section in H. R. 3354 will require reporting of items over $5,000 to some congressional ninnies.  The cost of monitoring and electronic reporting probably costs more than the stinking furniture or cost of redecorating.

Vern:

Here is a reason why appropriations laws do not appear in the United States Code (U.S.C).  Below is a Question and Answer session on the House of Representatives U. S. Code site.  The Question and answer are the 4th on the list.

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Q:  Does the United States Code contain all the Federal laws?

A:  No. The Code only includes the general and permanent laws of the United States. Temporary laws, such as appropriations acts, and special laws, such as one naming a post office, are not included in the Code.

I always wondered what happened to the details of an appropriations act.  So, I tried to backdoor finding the section of the U. S. C. in the following manner.  I used the second Public Law on p. 6 of the GAO report to search in the Statutes At Large.  (Simply because the online sources only go to the year 2011.)  That Public Law is Public Law 101-509.  The furniture reporting provision is section 614 and is at 104 STAT. 1474.  In permanent laws, sections are shown their coding in the U. S. C. when one goes to the Statutes At Large.  Section 614 doesn't.  I again did another search trying to ask google where are appropriations laws in the U. S. C.  After many tries today, I got lucky and found the answer.

I include the following caveat.  I did find parts of an appropriations law in Title 10 of the U.S.C. and I cannot explain why.  

That still leaves the OP in continuing resolution hell.  All bureaucrats will be in it by Friday.

Thanks, Bob. I wrote a pamphlet about the USC about 10 years ago, in which I explained what it does and does not contain..

Thank you, all.  

Could you imagine doing this for a living?

Oh well, if it were easy they would not need us in the first place...

FAR-flung 1102:

Yesterday afternoon, H. R. 1625, Consolidated Appropriations Act, 2018, was signed into law.  As I mentioned in an earlier post, the appropriation bill had to be dealt with by Friday.  Now, it has.

Section 710 is part of Public Law 115- xx which should be numbered shortly, if not already.   To find section 710, one must go to: DIVISION E, TITLE VII GENERAL PROVISIONS--GOVERNMENT-WIDE.  (p 574 in the pdf version)  Or, you may simply find it with Chrome's find box by searching for redecorate.  Section 710 is in the quote box.

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Sec. 710. During the period in which the head of any department or agency, or any other officer or civilian employee of the Federal Government appointed by the President of the United States, holds office, no funds may be obligated or expended in excess of $5,000 to furnish or redecorate the office of such department head, agency head, officer, or employee, or to purchase furniture or make improvements for any such office, unless advance notice of such furnishing or redecoration is transmitted to the Committees on Appropriations of the House of Representatives and the Senate. For the purposes of this section, the term ``office'' shall include the entire suite of offices assigned to the individual, as well as any other space used primarily by the individual or the use of which is directly controlled by the individual.

April 16, 2018

The Government Accountability Office (GAO) today issued the following legal decisions and opinions of the Comptroller General:

Appropriations Decision:

B-329603, U.S. Environmental Protection Agency--Installation of Soundproof Privacy Booth, April 16, 2018
https://www.gao.gov/products/B-329603

Section 710 of the Financial Services and General Government Appropriations Act, 2017 (section 710) prohibits an agency from obligating an amount in excess of $5,000 to furnish, redecorate, purchase furniture for, or make improvements for the office of a presidential appointee during the period of appointment without prior notification to the appropriations committees of Congress. The statutory language of section 710 requires notification not only for the purchase of furniture and for aesthetic changes, but also for supplying the office with other equipment. The U.S. Environmental Protection Agency (EPA) violated section 710 when it failed to notify the appropriations committees prior to obligating in excess of $5,000 for the installation of a soundproof privacy booth for the office of the Administrator during the period of his appointment. Because EPA used its appropriations in a manner specifically prohibited by law, EPA violated the Antideficiency Act and should report a violation as required by 31 U.S.C. § 1351.

On March 18, Vern wondered whether an agency would have to wait for a response or approval from Congress before expending the funding in excess of the $5,000 limit. The above GAO Appropriations Decision would indicate to me that one should wait for a response before obligating the funds for the expenditure.

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According to EPA, the booth “not only enables the Administrator to make and receive phone calls to discuss sensitive information, but it also enables him to use this area to make and receive classified telephone calls (up to the top secret level) for the purpose of conducting agency business.”  (emphasis added)

Oh brother, the Cone of Silence.

I checked EPA's procedures and found that it has a National Security Information program that may include up to Top Secret.  EPA also has a Sensitive Compartmented Information program with clearances that go beyond the normal classification of Top Secret.  Apparently, it is theoretically possible that EPA needs a Cone of Silence.  Nothing is too strange in the federal government.  On second thought, looking at the quotes, EPA's Cone of Silence might not be capable of being used for Compartmented information since EPA's cone is only good for up to Top Secret.

An obscure regulation buried in an appropriation is not something that 95% of contracting officers would be aware of.

On ‎4‎/‎17‎/‎2018 at 10:19 AM, Desparado said:

An obscure regulation buried in an appropriation is not something that 95% of contracting officers would be aware of.

Add to that problem, most Contracting offices are told by their leadership and legal team that if its not in the FAR, then it doesn't apply to their jobs.  Things like changes to the CFR, new laws enacted, etc. are not even looked at or if known, are prohibited per those offices.  I deal with that all the time when KOs refuse to use the new CFR regulations because the FAR still has the old information.

DW, what CFR changes are you referring to?  Changes to DoL, SBA, etc.?

Retread,  the CFR has changed many of the regulations dealing with FAR 19 on topic such as the Non-Manufacturer Rule, the Simplified Acquisition threshold, etc. but many organizations will not allow KOs to use those changes until they are added to the FAR.  An example:  the CFR changed the NMR last year (FY 17) to eliminate the need for a waiver for any procurement valued at or below the SAP (13 CFR § 121.406(d)   .  The FAR currently states that a waiver is required for all procurements exceeding $25K (19.502-2(c)). 

Another change is for procurements that are not totally outside the continental US (OCONUS) but have one aspect that is OCONUS such as the delivery location or minor labor costs for set up or assembly.  Even when that labor will be the responsibility of US contractors, some procurement offices refuse to deviate from FAR 19.000(b) (applies only in the United States or its outlying areas), despite the CFR change that removed the restriction for all but requirements that were performed totally OCONUS.  Currently a requirement can be awarded in the US, with products manufactured in the US, from US contractors, delivered and set up by US contractors (sometimes using foreign subcontractors and sometimes using US prime contractor personnel), to be delivered to a foreign location and the KO will use FAR 19.000(b) to reject a SB set aside despite the ONLY foreign aspect will be the spot where the US product will be placed.

DW, what gives a contracting officer the authority to ignore the FAR and apply the regulations of an agency like the SBA or DoL instead of what the FAR provides?

Retreadfed,  Well, the FAR is part of the CFR so it is the same body of regulations.  Its just easier to say "the FAR and nothing but the FAR!" but if there is a law, statute or regulations that is newer, or better defines the intent of the source law, why should Contracting ignore that law, statute or regulation?  Cite the regulation and move on smartly would make sense to me, but the current atmosphere in contracting is to wear FAR (and only FAR) blinders and ignore updated CFR regulations that would improve the contracting process. 

I am not talking about regulations from left field, what DOL or internal SBA regulations say that are not related to contracting for the Government, I am talking about the source regulations that the FAR is built upon.  FAR 19 is full of links to SBA regulations that apply to every contracting organization except those exempt from the FAR.  It's not that hard (I believe), for Contracting professionals to understand which regulations apply and which are inappropriate and only apply to the SBA itself.

There was a discussion dealing with SBA and the FAR from the past.  It might be useful hre.

FAR trumps SBA Regs?

I forgot to add that the discussion was from 2009 when this discussion software used a wacky editor that added its own preferred punctuation.

There may be a fairly recent--and important--SCOTUS decision that touches on an agency's regulation too.  I cannot think of it at the moment but I posted it here somewhere.

Retreadfed said:

DW, what gives a contracting officer the authority to ignore the FAR and apply the regulations of an agency like the SBA or DoL instead of what the FAR provides?

See FAR 1.602-1(b):

Quote

(b) No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met.

Emphasis added. Nothing in FAR says that it prevails if it conflicts with another agency's regulation.

See also FAR 1.602-2:

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Contracting officers are responsible for ensuring performance of all necessary actions for effective contracting, ensuring compliance with the terms of the contract, and safeguarding the interests of the United States in its contractual relationships. In order to perform these responsibilities, contracting officers should be allowed wide latitude to exercise business judgment. Contracting officers shall—

(a) Ensure that the requirements of 1.602-1(b) have been met....

Emphasis added.

Sometimes regulations conflict, and the conflict must be resolved in favor of one or the other. See e.g., C&G Excavating, Inc. v. U.S., 32 Fed.Cl. 231 (1994):

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Although plaintiff contends that the FAR restriction controls the extent of the SBA's review authority, plaintiff fails to recognize that “considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer.... [especially when the] ‘decision as to the meaning or reach of a statute has involved reconciling conflicting policies....' ” Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984) (footnote omitted) (quoting United States v. Shimer, 367 U.S. 374, 382, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961) (citations omitted)). Because Congress entrusted the SBA with administering the COC program as provided in section 8(b) of the Act, 15 U.S.C. § 637(b)(7), the court must accord the SBA's interpretation of the program appropriate deference. The FAR, promulgated by DOD, GAO, and NASA, are designed to provide uniform acquisition procedures for federal government agencies. Once the contracting officer refers a matter to the SBA, as required by the FAR, the SBA's procedures generally should control, especially considering that the SBA is the agency charged with issuing COCs, not DOD, GAO, or NASA.

*     *     *

With regard to the direct conflict between 13 C.F.R § 125.5(e) and FAR § 19.602–2(a)(2), the court finds that the restrictive language in the FAR concerning the scope of SBA's site investigation cannot be interpreted to limit the scope of SBA's general review authority. The clear intendment of 13 C.F.R. § 125.5(e) is that the SBA may perform a site investigation examining all elements of responsibility. This interpretation is consistent with the statute and shall be given deference.

This raises some interesting issues.  Let's take limitation on subcontracting as an example.  In the 2013 NDAA, Congress amended the Small Business Act by changing the limitation on subcontracting applicable to set aside contracts.  However, the SBA did not implement these changes until May of 2016 with an effective date of June 2016.  Although there is a FAR case to update the FAR to be consistent with the revised SBA rules, the FAR has not been changed to reflect the statutory changes that have been in effect since 2013 or the SBA rules that have been in effect since 2016.

Taking the limitation on subcontracting when a service contract is involved, 13 CFR 125.6 states in part that the contractor "will not pay more than 50% of the amount paid by the government to it to firms that are not similarly situated. "  In contrast, FAR 52.219-14 states that the contractor will pay at least "50 percent of the cost of contract performance incurred for personnel shall be expended for employees of the concern."  Clearly there is an inconsistency between the SBA rules and the FAR.  Further, the FAR is inconsistent with the 2013 NDAA amendments.

Applying FAR 1.602-1(b), no contract awarded after June 2016 should contain FAR 52.219-14, but should contain language that is consistent with the NDAA and implementing SBA rules.  This raises the question of whether contracts awarded with 52.219-14, as contained in the FAR, were properly awarded? 

In order to achieve consistency with the NDAA and SBA rules, the contracting officer would have to obtain a deviation to 52.219-14.  If such deviation is not granted, can the contracting officer award the contract using 52.219-14 as currently written?

Retreadfed said:

This raises the question of whether contracts awarded with 52.219-14, as contained in the FAR, were properly awarded? 

In order to achieve consistency with the NDAA and SBA rules, the contracting officer would have to obtain a deviation to 52.219-14.  If such deviation is not granted, can the contracting officer award the contract using 52.219-14 as currently written?

Given our imperfect system of statutory and administrative law, I doubt that any court would declare such a contract improper and void ab initio. But who knows what a court might do?

I think that a CO should initiate action in accordance with the law. I tend to be a stickler about complying with the rules, but when the rules conflict due to bureaucratic inaction I think a CO should act to award contracts in accordance with current statute or governing regulation. I realize of course that COs are themselves merely bureaucrats and must work within the bureaucratic scheme of their respective agencies, and that most will not be free to act on their own.

If I were a CO, I might modify the FAR clause to bring it into line with statute without an approved deviation and see who says what about it. If they ordered me to comply with the FAR despite the statute I would document the file and move on. But then again, being sick of the socio-economic programs I might just laugh.