TITLE: B-310502, Department of the Army--Use of Appropriations for Bottled Water, February 4, 2008
BNUMBER: B-310502
DATE: February 4, 2008
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B-310502, Department of the Army--Use of Appropriations for Bottled Water, February 4, 2008
Decision
Matter of: Department of the Army--Use of Appropriations for Bottled Water
File: B-310502
Date: February 4, 2008
DIGEST
Federal law and U.S. Army Corps of Engineers (Corps) policy require that
the Corps provide access to potable water for employees working in remote
areas of the Savannah District. For work sites that have no access to
potable water, it is within the Corps' discretion to decide how best to
meet this responsibility, whether by providing coolers or jugs for
transporting water or by providing bottled water. We have no objection to
the Corps using appropriated funds to provide bottled water, so long as
the Corps administratively determines that providing bottled water is the
best way to provide its employees at a particular remote area with access
to potable water.
DECISION
A disbursing officer of the U.S. Army Corps of Engineers (Corps) has
requested an advance decision under 31 U.S.C. sect. 3529 regarding the
availability of appropriated funds to pay for bottled water for employees
working in remote areas in the Corps' Savannah District. Letter to Office
of General Counsel, GAO, from Anne Schmitt-Shoemaker, Disbursing Officer,
Corps, to Office of General Counsel, GAO, Sept. 12, 2007 (Request Letter).
Specifically, the disbursing officer has asked whether the Corps may use
appropriated funds to reimburse employees for bottled water or to purchase
bottled water in bulk to provide to employees working in remote areas. For
the reasons stated below, we have no objection to the Corps using its
appropriations for bottled water so long as the Corps administratively
determines that providing bottled water is the best way to provide access
to employees to a source of potable water. To protect the health and
safety of its employees, federal law and Corps policy and regulation
require that the Corps provide employees with access to potable water.
Our practice when rendering decisions is to obtain the views of the
relevant agency to establish a factual record and the agency's legal
position on the subject matter of the request. GAO, Procedures and
Practices for Legal Decisions and Opinions, GAO-06-1064SP (Washington,
D.C.: Sept. 2006), available at www.gao.gov/legal/resources.html. In this
regard, we sent a development letter to the disbursing officer to clarify
facts and obtain copies of legal advice that had been provided to her.
Letter from Thomas H. Armstrong, Assistant General Counsel for
Appropriations Law, GAO, to Anne M. Schmitt-Shoemaker, Disbursing Officer,
Corps, Oct. 24, 2007. In response, the disbursing officer forwarded to us
information provided by the Savannah District Office, including the
opinions provided by both District Counsel and counsel at Corps
Headquarters. Letter from Anne M. Schmitt-Shoemaker, Disbursing Officer,
Corps, to Thomas H. Armstrong, Assistant General Counsel, GAO, Nov. 5,
2007 (Response Letter).
BACKGROUND
Army Corps of Engineers drill crews work in remote areas throughout
various parts of the United States. Response Letter, at 2. Remote work
sites are often not easily accessible and, at times, crews of up to 4 or 5
employees travel by boat or walk through swamps and wooded areas to reach
drilling sites to begin each day's work. E-mail from Brenda Ponder,
Finance and Accounting Officer, Corps Savannah District, to Anne
Schmitt-Shoemaker, Nov. 2, 2007 (Ponder E-mail) (transmitted with Response
Letter). Employees are often required to work outside in hot, humid, and
dusty conditions for up to 12 hours during the day. Id. Many of these
remote drilling sites in the Savannah District are not developed and
contain no utility infrastructure. Id. In most cases, no potable water is
available at or within a reasonable distance from the site. Id.
From time to time, Corps Finance Center has received requests to reimburse
Savannah District employees for purchases of bottled water consumed while
working on drill crews at remote sites.[1] Request Letter, at 1. Noting
that other districts do not provide bottled water to employees working in
remote areas, the disbursing officer has questioned whether she may
approve payment for bottled water for Savannah District employees or for
purchase of bottled water in bulk for use of employees at remote work
sites. Request Letter, Attachment 2.
Included with the Request Letter is e-mail correspondence between the
Finance Center and Corps Headquarters regarding Corps policy on the
purchase of bottled water for use of employees. Request Letter,
Attachments 1, 2. According to advice from Headquarters' Office of
Counsel, the purchase of bottled water is viewed as a luxury and it should
not be purchased for use of work crews unless potable water is not
available within a reasonable distance from the work site. Request Letter,
Attachment 2. Noting that crews working at remote sites often will have
access to potable water in hotels or at home, Office of Counsel further
advised, in keeping with Corps practice, that water coolers be purchased
and filled with water from these sources and carried into the field for
employees' consumption during field activities. Id.
In addition to the advice provided by the Office of Counsel, the
disbursing officer received what she perceived to be conflicting advice
from the Savannah District Counsel, who took the position that
appropriations are available for purchase of bottled water and that a
water cooler is inadequate to meet the needs of the drilling crews.
Request Letter, Attachment 1. According to the Savannah District Counsel,
due to the extreme conditions encountered by the drilling crews, potable
water is a "life safety issue" and is required by Army Regulations and
agency policy. Id. District Counsel noted that, in most cases, the only
water sources available to fill water coolers are located in motels
housing employees during assignment. Id. Questioning whether conditions
would allow for jugs or coolers to be adequately sterilized for use over
multiday assignments, the District Counsel determined that the purchase of
bottled water is the most cost effective way to provide potable water to
employees on some remote drilling sites and concluded that, in such
conditions, appropriations are available for the purchase of bottled
water. Id.
DISCUSSION
Bottled water is ordinarily considered a personal expense of the
government employee. B-303920, Mar. 21, 2006. As a general rule, without
specific statutory authority, appropriated funds are not available for
personal expenses. B-302548, Aug. 20, 2004; 68 Comp. Gen. 502 (1989). We
have recognized exceptions to this general rule, however, when the
expenditure for a particular item, otherwise personal in nature, primarily
benefits the government. B-309604, Oct. 10, 2007. For example, we
concluded that appropriations were available to purchase special
protective clothing and equipment for federal employees of a War
Department ordnance plant. 21 Comp. Gen. 731, 733 (1946). The department
could show that such items, by protecting the safety of War Department
employees and the public, were "essential to the safe and successful
operation of the respective plants and their purchase [was] primarily for
the benefit of the government." Id.
Under the Occupational Safety and Health Act of 1970, Pub. L. No. 91-596,
84 Stat. 1590 (Dec. 29, 1970), agencies, as employers, must provide "safe
and healthful places and conditions of employment" for their employees and
establish and maintain an effective and comprehensive occupational safety
and health program for their employees. 29 U.S.C. sect. 668(a); Exec.
Order No. 12196, Occupational Safety and Health Programs for Federal
Employees, 45 Fed. Reg. 12,769 (Feb. 26, 1980). In this regard, the Corps
provides guidance requiring that each component, including the district
offices, "shall establish and maintain basic sanitation provisions for all
employees in all places of employment." Safety and Health Requirements, EM
385-1-1, 02.A.01 (Nov. 3, 2003). As part of basic sanitation, the guidance
requires that "[a]n adequate supply of drinking water shall be provided in
all places of employment. Cool water shall be provided during hot
weather." EM 385-1-1, 02.B.01. Corps policy also provides extensive
guidance on furnishing potable drinking water to employees working field
activities throughout the United States. See EM 385-1-1, 02.B.01c
(drinking water for field activities shall be provided according to the
procedures defined in Army regulations, field manuals, technical
bulletins, and Marine Corps reference publications).
We have recognized that an agency, as an employer, is expected to meet
certain basic needs of its employees, particularly when it comes to
protecting an employee's health and safety in the workplace. For example,
we have concluded that appropriations are available to purchase protective
hoods for employees' use in the event of a chemical or biological attack.
B-301152, May 28, 2003. In reaching this conclusion we noted:
"In considering the availability of an agency's appropriations for
operational expenses, it is important to factor into our consideration
notice of what our society expects of its employers. Without question,
an agency may use appropriated funds to satisfy basic fundamental needs
such as potable water, clean air, and sufficient light."
Id. Similarly, an agency may use appropriated funds to purchase bottled
water when an agency's work site has no available potable drinking water
or when the available drinking water poses health risks if consumed. 25
Comp. Gen. 920 (1946) (drinking water supply pipeline could not be
reliably maintained); B-247871, Apr. 10, 1992 (drinking water analysis
revealed dangerous levels of lead contamination).
According to the Finance Center and the Savannah District Counsel,
drilling crews working in some remote areas of the Savannah District have
no reliable water source or access to a water source within a reasonable
distance of the work site. Request Letter, Attachment 1; Ponder E-mail.
Indeed, many of these drilling sites are far from any facility that could
provide a water source. For some work sites, employees may be dropped off
by boat or car and, in some instances, crews are required to walk through
uninhabited areas to reach the actual work sites. In light of the lack of
available potable water and consistent with the Occupational Safety and
Health Act and Corps policy, it is the Corps' responsibility to provide
access to potable water for employee consumption at all places of
employment, regardless of whether that work site is an office building or
in the field. It is within the Corps' discretion, however, to determine
how best to meet this responsibility, whether by supplying employees with
coolers or jugs to carry water to a work site from some other location or
by providing bottled water. So long as the Corps determines that bottled
water is the best way to provide employees with access to potable water in
a particular situation, we would have no objection to the Corps' use of
appropriations for the purpose of providing the bottled water.
CONCLUSION
Federal law and Corps policy require that the Corps provide access to
potable water for employees working at Corps work sites. For employees
working at remote sites with no access to potable water, it is within the
Corps' discretion to determine how best to meet this responsibility,
whether by providing coolers or jugs for transporting water or by
providing bottled water. We have no objection to the Corps using
appropriated funds to provide bottled water so long as the Corps
administratively determines that bottled water is the best way to provide
employees at a particular site with access to potable water.
Gary L. Kepplinger
General Counsel
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[1] There are currently no outstanding requests for reimbursement for
purchase of bottled water from the Savannah District. Ponder E-mail.