TITLE:   United States International Trade Commission – Cultural Awareness, B-278805, July 21, 1999
BNUMBER:  B-278805
DATE:  July 21, 1999
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United States International Trade Commission – Cultural Awareness,
B-278805, July 21, 1999

Decision

Matter of: United States International Trade Commission – Cultural
Awareness

File: B-278805

Date: July 21, 1999

DIGEST

1. Our decision at 60 Comp. Gen. 303 (1981) does not require that a program
or event have a specific, advance written approval in a formal agency
issuance to be a formal Equal Employment Opportunity program for which
appropriated funds are available for artistic performances. It is sufficient
that an authorized agency official determines that the artistic performance
is part of a program or event that advances equal employment opportunity
objectives.

2. An agency may reimburse a voluntary creditor who personally paid
musicians for performing at a cultural awareness program if the ITC
determines (1) that the underlying payment was authorized, (2) failure to
act would have resulted in a disruption of relevant program activity, and
(3) the transaction satisfied criteria for either ratification or quantum
meruit, applied as if the musicians had not been paid.

3. The three year statute of limitation on our settlement of accountable
officer accounts in 31 U.S.C. sect. 3526(c) (1994) does not bar paying a
voluntary creditor's claim for reimbursement. The six-year statute of
limitation on agency settlement of claims in 31 U.S.C. sect. 3702 (1994, Supp.
III 1997) governs the claim.

DECISION

This decision is in response to separate requests from the Director, Office
of Finance and Budget, and the Inspector General of the United States
International Trade Commission (ITC) regarding the use of ITC funds to pay
musicians performing at a cultural awareness program. The ITC officials
essentially ask (1) whether ITC funds were available for a musical
performance at a cultural awareness program for "Irish-American Heritage
Month," (2) whether the ITC may reimburse the Director, Office of Equal
Employment Opportunity, ITC, for personal funds paid to the musicians, and
(3) whether reimbursement is now barred because more than three years have
elapsed since the Director made the payments.

As discussed below, ITC funds are available to pay the musicians and,
subject to ITC making the requisite findings, ITC may reimburse the Director
for personal funds used to pay the musicians. Should ITC make the requisite
findings, ITC is not now barred from reimbursing the Director by the
three-year statute of limitation imposed by 31 U.S.C. sect. 3526(c) (1994).

Background

On March 8, 1994, the President proclaimed March 1994 as Irish-American
Heritage Month, urging Americans to observe the month with appropriate
ceremonies and activities. [1] On March 9, 1994, the Director, Office of
Equal Employment Opportunity (OEEO), United States International Trade
Commission (ITC), submitted a "Requisition for Supplies, Equipment, or
Services," to procure the services of an Irish Band to perform for
Commission employees on St. Patrick's day. The musicians were to be part of
a program presenting factual information about the Irish culture, including
an explanation by the musicians of the history of each song. The musicians
were to be paid $300. After reviewing the preliminary requisition for
services, [2] the Director, Office of Finance and Budget (OFB), met with the
OEEO Director on March 11, 1994, and advised the Director that appropriated
funds were not available to pay the musicians an honorarium for
participation in the planned program.

The OEEO Director proceeded with the program on March 16 and paid the
musicians with personal funds. The Director also requested that OFB
reconsider its verbal opinion denying payment. By memorandum to the OEEO
Director, dated April 13, 1994, the OFB Director again denied the payment,
reasoning that the ITC did not have a formal written Equal Employment
Opportunity program that specifies as one of its objectives the promotion of
cultural awareness as they believed 60 Comp. Gen. 303 (1981) required.

The matter arose again in June 1997 when the ITC General Counsel opined that
the expense for the Irish Band was an allowable expense. Partly as a result
of the General Counsel's opinion, the OEEO Director submitted a "Requisition
for Supplies, Equipment, or Services," dated July 18, 1997, making "a
request for reimbursement in the amount of $300 for fees paid for musical
program of Irish music and folk songs with narrative presentation relative
to origin and cultural history of Irish Americans." The Inspector General
subsequently issued a report on September 30, 1997, concurring in the
General Counsel's opinion.

Because of differences of opinion within ITC, the OFB Director and later the
IG submitted this matter to us for an advance decision.

Analysis

Equal Employment Opportunity Program

In 60 Comp. Gen. 303 (1981), we considered whether appropriated funds were
available to pay for a performance of African dancers at a ceremony
observing Black History Month. We concluded that appropriated funds would be
available for

"a live artistic performance as an authorized part of an agency's Equal
Employment Opportunity (EEO) effort if, as in this case, it is a part of a
formal program determined by the agency to be intended to advance EEO
objectives, and consists of a number of different types of presentations
designed to promote EEO training objectives of making the audience aware of
the culture or ethnic history being celebrated." 60 Comp. Gen. at 306.

In support of our conclusion we cited Office of Affirmative Employment
Programs, Office of Personnel Management (OPM), guidelines for artistic
presentations at agency sponsored Hispanic Heritage Week programs. After
being advised that OPM intended the guidelines to be generic and therefore
applicable to analogous ethnic or cultural special emphasis programs, we
concluded that they provided a reasonable basis for distinguishing EEO
special emphasis program artistic presentations from employee entertainment.
60 Comp. Gen. 306. [3] We subsequently indicated that such artistic
presentations should be representative of a cultural or ethnic heritage with
which all employees should be familiar. 64 Comp. Gen. 802, 804 (1985).

The concern presented by these cases is to distinguish between appropriate
expenses for legitimate cultural awareness programs and the inappropriate
use of appropriated funds to entertain federal employees. It is in the
context of limiting the potential misuse of appropriated funds to entertain
federal employees that the reference to "formal program" in 60 Comp. Gen.
303 should be understood. To help protect against abuse, we thought it
important that before making appropriated funds available for an artistic
performance, the agency should conclude that the performance was part of and
would further a program that the agency determined would promote EEO
objectives. We did not require that agencies describe in writing the subject
or detail of a particular EEO program or event, nor did we define the
characteristics of a "formal program."

Thus, 60 Comp. Gen. 303 does not require that the particular program or
event receive specific, advance written approval in a formal agency
issuance. What is required is that the agency through an authorized official
determines that the planned artistic performance advances EEO objectives.
The regulations of the Equal Employment Opportunity Commission relating to
agency programs to promote equal opportunity provide that an agency should
maintain a continuing affirmative program to promote equal opportunity and
eliminate discriminatory practices and policies, including conducting a
continuing campaign to eradicate every form of prejudice or discrimination
from the agency's working conditions. 29 C.F.R. sect. 1614.102(a)(3) (Revised
July 1, 1994). In this regard the OEEO Director's responsibilities included
developing, implementing, and coordinating specific plans including training
programs to effect the equal employment goals and objectives of the ITC. [4]
We recognized in 60 Comp. Gen. 303 that cultural awareness programs are a
form of employee training intended to expand the awareness of employees of
different cultures in order to meet EEO objectives. Thus one could
reasonably conclude that the ITC authorized the OEEO Director to determine
whether a program commemorating Irish-American Month and a performance of
musicians playing and explaining the history and meaning of Irish songs
furthered EEO objectives by expanding employees' cultural understanding and
awareness. [5]

Voluntary Creditor

A "voluntary creditor" is someone who makes a payment from personal funds,
ostensibly on behalf of the government, which he or she is not legally
required or authorized to make and then claims reimbursement from the
government. [6] While the government is under no obligation to reimburse a
voluntary creditor, there are situations where, as a matter of public
policy, voluntary creditors may be reimbursed. Thus we have not objected to
reimbursement where (1) the underlying expenditure itself is authorized, (2)
failure to act would have resulted in a disruption of relevant program
activity and (3) the transaction satisfied criteria for either ratification
or quantum meruit, applied as if the contractor had not been paid.

The preceding section of our analysis addressed the first prong of our
guidelines. The second prong is whether the voluntary payment meets the test
of "public necessity." 62 Comp. Gen. 419, 424 (1983); 62 Comp. Gen. 595
(1983). The purpose of the test is to limit reimbursement to cases where
there is a real need to act without delay to protect a legitimate government
interest. The measure of the test is the extent to which the program or
activity would have been disrupted had the voluntary creditor not taken
prompt action. In the present case the OEEO Director may meet this test
since there were only two working days between the meeting with the OFB
Director where she was informed that funds were not available to pay for the
Irish Band, and the St. Patrick's Day program. (In this regard, we have held
that the test was met where a voluntary creditor purchased replacement
picture mats for a lounge at an Army facility because she thought using the
normal procurement process would not result in delivery in time for
scheduled inspection by base officials. B-242412, July 22, 1991.).

Once the "public necessity" test is satisfied, the agency should determine
whether it could have ratified the transaction if the voluntary creditor had
not made the payment. If the agency could have ratified the transaction to
pay the contractor for example, under the Federal Acquisition Regulation, 48
C.F.R. sect. 1-602-3(c), it may reimburse the voluntary creditor. As noted in
footnote 5 above, the submission does not indicate that the OEEO Director
actually entered into a contract on behalf of the government. Accordingly,
the request for reimbursement may be considered under a quantum meruit or
quantum valebant approach. For payment to be authorized on a quantum meruit
or quantum valebant basis, the agency must determine that (1) using
appropriated funds for the goods or services at issue is not prohibited, (2)
the government received and accepted a benefit, (3) the claimant acted in
good faith, and (4) the claimed amount represents the reasonable value of
the benefit received. 62 Comp. Gen. at 424-425.

Effective June 30, 1996, Congress transferred our claims settlement
authority under 31 U.S.C. sect. 3302 to the Director of the Office of Management
and Budget (OMB) with the authority to delegate this function to such agency
or agencies as he deemed appropriate. The Director, OMB delegated settlement
of the type of claim presented here to the agency from whose activities the
claim arose, in this case, the ITC. See Director of OMB's "Determination
with Respect to Transfer of Functions Pursuant to Public Law 104-53," dated
June 28, 1996, Attachment A and "Determination With Respect to Transfer of
Functions Pursuant to Public Law 104-316," dated December 17, 1996,
Attachment A. Accordingly, it is for the ITC to resolve the request for
reimbursement consistent with the guidelines discussed above.

Statute of Limitations

The OFB Director asks whether the $300 may now be paid in light of the fact
that more than three years has passed since the OEEO Director paid the
musicians. In this regard, the issue is whether the payment is barred by the
three-year statute of limitations applicable to our authority to settle the
accounts of accountable officers under 31 U.S.C. sect. 3526(c) (1994). The
three-year limit on our account settlement authority relates to our
authority to audit and disallow improper payments charged to an
appropriation or fund account of the government. Since the question before
this Office does not involve a payment that has been charged to an
appropriation or fund account of the government, the matter is not governed
by the three-year statute of limitations for our settling accountable
officer accounts. See GAO, Policy and Procedures Manual for Guidance of
Federal Agencies, tit. 7, sect.sect. 8.5, 8.7 (T.S. No. 7-43, May 18, 1993).
Instead, the six-year statute of limitation in 31 U.S.C. sect. 3702(b)(1)
governs such claims.

Comptroller General
of the United States

Notes

1. Proclamation 6656, 3 C.F.R. sect. 16 (1994 Compilation).

2. The "Requisition" had not yet been processed through the ITC's formal
procurement process.

3. Although OPM subsequently abolished the guidelines, agency use of similar
criteria when making determinations regarding such matters would be
reasonable.

4. See section 5b(1) of Directive 4502.2, dated April 15, 1993.

5. From the information submitted, the Director, OEEO apparently did not
execute a contract with the Irish Band on behalf of the ITC. If the Director
had done so, the ITC could ratify the agreement provided it met. See Federal
Acquisition Regulation, 48 C.F.R. sect. 1.602-3(c) and B-251728.2, June 9, 1993.
Furthermore, even if the Director, OEEO was not authorized to make the
determination that cultural awareness program including the artistic
performance of Irish music furthered the equal employment goals and
objectives of the ITC, the ITC could ratify the Director's action. See
United States v. Beebe, 180 U.S. 343 (1901).

6. 3 GAO Principles of Federal Appropriations Law, 2d Ed., 12-138 (GAO/OGC
94-33, November 1994)