TITLE: B-310502, Department of the Army--Use of Appropriations for Bottled Water, February 4, 2008
BNUMBER: B-310502
DATE: February 4, 2008
*******************************************************************************************
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

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

   [1] There are currently no outstanding requests for reimbursement for
   purchase of bottled water from the Savannah District. Ponder E-mail.