TITLE: B-306663, Contractors Collecting Fees at Agency-Hosted Conferences, January 4, 2006
BNUMBER: B-306663
DATE: January 4, 2006
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B-306663, Contractors Collecting Fees at Agency-Hosted Conferences, January 4, 2006

   B-306663

   January 4, 2006

   The Honorable Barbara A. Mikulski

   United States Senate

   Subject: Contractors Collecting Fees at Agency-Hosted Conferences

   Dear Senator Mikulski:

   We received your letter dated October 4, 2005, asking us to revisit our
   March 2005 decision, National Institutes of Health--Food at
   Government-Sponsored Conferences, B-300826, Mar. 3, 2005. In that
   decision, we addressed the availability to the National Institutes of
   Health (NIH) of its appropriation for the purpose of providing food to
   attendees at NIH-hosted conferences. Id. In addition, in response to a
   question from NIH, we concluded that NIH may not charge an attendance fee
   at conferences and retain the proceeds, nor permit its contractor to do
   so, because NIH lacks statutory authority. Id. You expressed concern that
   this conclusion would reduce federal efforts to bring experts together at
   federally hosted conferences, particularly conferences hosted by the
   National Security Agency (NSA), to address evolving threats to the nation.

   We appreciate your interest in our March 2005 decision. However, we find
   no basis to change our conclusion that when an agency lacks statutory
   authority to charge a fee at a conference and retain the proceeds, neither
   the agency hosting a conference, nor a contractor on behalf of the agency,
   may do so. When entertaining a request for reconsideration of a decision,
   we consider whether the request demonstrates an error of fact or law in
   the earlier decision, or presents new information not considered in the
   earlier decision. B-271838.2, May 23, 1997. You do not assert that our
   March 2005 decision contained legal or factual errors. While you present
   information regarding agencies' practices that we did not address in our
   March 2005 decision, such information does not change our conclusion, as
   explained below.

   In your letter, you state that for several years, agencies have engaged in
   the practice of allowing their contractors, on behalf of the agencies, to
   collect fees from conference participants to offset the costs of
   agency-hosted conferences. You explain that agencies initiated this
   practice after we determined that agencies themselves cannot collect such
   fees without statutory authority.

   The miscellaneous receipts statute provides that "an official or agent of
   the Government receiving money for the Government from any source shall
   deposit the money in the Treasury as soon as practicable without deduction
   for any charge or claim." 31 U.S.C. sect. 3302(b). In earlier decisions,
   we indeed have advised that an agency, in the absence of statutory
   authority, may not retain fees or other amounts paid to the government for
   activities relating to official duties, but must deposit such funds in the
   general fund of the Treasury. E.g., B-302825, Dec. 22, 2004 (Office of
   Federal Housing Enterprise Oversight may not retain money collected from
   third party litigants for copying costs, but must deposit the money in the
   Treasury). Both GAO and federal judicial decisions have concluded that the
   miscellaneous receipts statute precludes an agency of the government
   diverting to a contractor of the government any amounts the contractor
   receives on behalf of the government. See, e.g., Scheduled Airlines
   Traffic Offices, Inc. v. Department of Defense, 87 F.3d 1356, 1361-63
   (D.C. Cir. 1996); Motor Coach Industries, Inc. v. Dole, 725 F.2d 958, 968
   (4^th Cir. 1984) (Federal Aviation Administration (FAA) cannot hold in a
   trust fund amounts paid by airlines to defray FAA's cost of acquiring new
   shuttle buses for Dulles Airport); cf. B-300248, Jan. 15, 2004.

   A government agency that lacks the authority to charge and retain fees may
   not cure that lack of authority by engaging a contractor to do what it may
   not do. A contractor in this situation is "receiving money for the
   Government," and the miscellaneous receipts statute requires that such
   funds must be deposited in the Treasury. Scheduled Airlines Traffic
   Offices, 87 F.3d at 1361-62. Consequently, in our March 2005 decision, we
   advised NIH that it could not "authorize its contractor to charge a fee to
   offset costs because, pursuant to 31 U.S.C. sect. 3302(b), a contractor
   receiving money for the government may not retain funds received for the
   government to pay for the conference costs." B-300826, Mar. 3, 2005.[1]

   Congress, of course, may enact legislation authorizing an agency hosting a
   conference on behalf of the government to collect and retain an attendance
   fee. Should Congress wish to grant agencies such authority, agencies may
   in turn permit their contractors to collect such a fee. Congress has
   available to it a number of options, each offering Congress different
   degrees of programmatic oversight. For example, Congress could amend the
   Government Employees Training Act, 5 U.S.C. sections 4101-4118, to allow
   agencies to collect attendance fees for conferences. Under 5 U.S.C. sect.
   4110, agencies may pay the expenses of their employees attending meetings
   and conferences related to agency functions and management. See B-288266,
   Jan. 27, 2003. Congress may choose to add language to section 4110
   permitting agencies, when hosting a conference, to charge and retain
   attendance fees to cover the costs of hosting the conference.[2] As we
   stated in our March 2005 decision, if an agency has such authority, an
   agency may permit its contractor, hosting a conference on behalf of the
   agency, to collect and retain fees on the agency's behalf to offset the
   conference costs.

   Rather than enacting a statutory change with governmentwide implications,
   if Congress preferred, it could enact statutory language either as part of
   the agency's authorizing legislation or its annual appropriation act,
   permitting a particular agency to charge an attendance fee at conferences
   and use the fees to offset conference costs. Congress, on occasion, has
   enacted legislation permitting an agency to charge and retain a fee. For
   example, Congress has authorized the National Park Service to charge
   entrance fees at some recreational lands and to retain the fees for
   expenditure, rather than depositing them in the Treasury. 16 U.S.C.
   sections 6802, 6806. Similarly, Congress could enact legislation
   permitting an agency such as NSA to charge an attendance fee at
   conferences and use the proceeds to defray the cost of the conferences.

   As we explained in our March 2005 decision, Congress has not provided NIH
   with authority to charge and retain a fee at conferences. We have not
   analyzed laws pertaining to NSA to determine whether NSA has authority to
   retain and use fees collected from its conference participants. If you
   decide to initiate legislative action to authorize NSA or other agencies
   to charge fees or allow contractors to charge fees to offset the cost of
   hosting a conference, we are available to assist your office. If you have
   any questions, please contact Tom Armstrong at 202-512-8257 or Susan
   Poling at 202-512-2667.

   Sincerely yours,

   /signed/

   Anthony H. Gamboa

   General Counsel

   ------------------------

   [1] The facts present in B-300826, March 3, 2005, did not require us to
   consider whether an agency could structure a no cost contract to achieve
   its objective consistent with the miscellaneous receipts statute.

   [2] The Government Employees Training Act permits agencies to provide
   training to employees of other agencies, and to collect and retain a fee
   to offset the costs associated with training the employees of other
   agencies. 5 U.S.C. sect. 4104. See B-241269, Feb. 28, 1991.