Fiscal Year 2018 Antideficiency Act Reports Compilation

B-330471

September 23, 2019

The Honorable Michael R. Pence
President of the Senate

The Honorable Nancy Pelosi
Speaker of the House of Representatives

Subject:  Fiscal Year 2018 Antideficiency Act Reports Compilation

Agencies that violate the Antideficiency Act must report the violation to the President and Congress and transmit a copy of the report to the Comptroller General at the same time.  31 U.S.C. §§ 1351, 1517(b).  The report must contain all relevant facts and a statement of actions taken. 

Since fiscal year 2005, GAO, in its role as repository for the Antideficiency Act reports that agencies submit, has produced and publicly released an annual compilation of summaries of the reports.  We base the summaries on unaudited information extracted from the agency reports.  Each summary includes a brief description of the violation and of remedial actions agencies report that they have taken.  We also include copies of the agencies’ transmittal letters.  We post the summaries and the agency transmittal letters on our public Web site.  In some cases, the agencies also sent us additional materials to accompany their transmittal letters.  We will release these additional materials to Members and their staffs upon request.

Please find enclosed the compilation of summaries of Antideficiency Act violation reports and agency transmittal letters for fiscal year 2018.  Agencies reported nine violations.  Except for GAO-ADA-18-05 and GAO-ADA-18-09, reported in the Enclosure, GAO has not opined on the violations reported or the remedial actions taken.

If you have any questions, please do not hesitate to contact Shirley A. Jones, Managing Associate General Counsel, at (202) 512-8156, or Omari Norman, Assistant General Counsel for Appropriations Law, at (202) 512-8272.

Thomas H. Armstrong
General Counsel

 

Enclosure

Antideficiency Act Reports – Fiscal Year 2018 GAO No.: GAO-ADA-18-01

Agency No.:  Army, 15-04	Date Reported to GAO: November 27, 2018
Agency: Department of the Army (Army)	Date(s) of Violation(s): Fiscal Years (FYs) 2013-2014
Account(s): Operations and Maintenance, Army Reserve	Amount Reported: $136,443.04

Description:  TheArmy, through the Department of Defense, reported that it violated the Antideficiency Act (ADA) when it obligated amounts to continue to pay salaries and benefits to two dual status Military Technicians after loss of membership in the Selected Reserve, which is a condition of employment as prescribed by 10 U.S.C. § 10216. 

The Army reported that it paid salaries and benefits to a Maintenance Administration and Supply Technician (former Sergeant/E-5) and a Heavy Mobile Equipment Mechanic Inspector (former Staff Sergeant/E-6).  The Army reported that both individuals’ employment in their positions required membership in the Selected Reserve.  However, the Army reported that both individuals declined to reenlist and accepted an honorable discharge from the Selected Reserve.  Because the Army continued to employ the individuals as dual status Military Technicians despite their departure from the Selected Reserve, the Army reported that it incurred uncorrectable violations of the ADA.

Remedial Action Taken:  The Army reported that one individual was identified as being responsible for the violation.  The Army reported that it determined that no disciplinary action would be taken as the impact on the individual’s promotion potential, future employment, and the stigma associated with the violations were sufficient punishment.  Also, the Army reported that the violations contained no willful or knowing intent on the part of the responsible individual.  Additionally, an Army official directed staff to run a quarterly report to verify conditions of employment for Military Technicians.  On December 22, 2016, the U.S. Army Reserve Command’s Civilian Personnel Management Office released a message reiterating the conditions of employment for dual status Military Technicians and providing guidance to assist subordinate commands with monitoring those conditions.

Source:  Unaudited information GAO extracted from agency Antideficiency Act reports; for further information about a specific report, please contact the relevant agency.

 

Enclosure

Antideficiency Act Reports – Fiscal Year 2018 GAO No.: GAO-ADA-18-02

Agency No.: Army 17-01	Date Reported to GAO: February 22,  2018
Agency: Department of the Army (Army)	Date(s) of Violation(s): Fiscal Years (FYs) 2011-2015
Account(s): Operations and Maintenance, Army	Amount Reported: $1,695,746.72

Description:  The Army, through the Department of Defense, reported that it violated the Antideficiency Act (ADA) when it obligated funds for the development of a covered Defense business system without first obtaining the necessary certification and approval, as required by 10 U.S.C. § 2222.

The Army reported that 10 U.S.C. § 2222 requires certification and approval by an investment review board and the Defense Business Systems Management Committee for any systems development/modernization investments costing in excess of $1 million for FY 2011 and costing in excess of $1 million over the period of the current future-years defense program for FYs 2012-2015.  The Army reported that the U.S. Army Sustainment Command (ASC) failed to obtain the certification and approval before obligating funds for development of a covered Defense business system.  The Army reported that as a result, the ASC incurred an uncorrectable violation of 31 U.S.C. § 1341(a)(1)(A).

Remedial Action Taken:  The Army reported that it identified four individuals responsible for the violations.  The Army reported that three of the individuals are no longer employed by the U.S. Government, and discipline was not pursued.  The Army reported that one individual was issued a formal memorandum of counseling from the ASC Commanding General.  The Army reported that it determined that the violation contained no willful or knowing intent on the part of this individual to violate the ADA.

The Army reported that to prevent a recurrence of this type of violation the ASC has changed its internal procedures to ensure that appropriations are no longer used in this fashion.

Source:  Unaudited information GAO extracted from agency Antideficiency Act reports; for further information about a specific report, please contact the relevant agency.

 

Enclosure

Antideficiency Act Reports – Fiscal Year 2018 GAO No.: GAO-ADA-18-03

Agency No.: None Reported	Date Reported to GAO: May 21, 2018
Agency: Department of Commerce  (Commerce)	Date(s) of Violation(s): Fiscal Years (FYs) 2008 and 2009
Account(s): NOAA’s Operations, Research, and Facilities and Procurement, Acquisition, and Construction	Amount Reported: $35,167,000.00

Description:  Commerce reported that it violated the Antideficiency Act (ADA), 31 U.S.C. § 1341(a)(1)(A), when the National Weather Service (NWS) in the National Oceanic and Atmospheric Administration (NOAA) reprogrammed funds in fiscal years (FY) 2008 and 2009 without providing advance notice to Congress as required by law.  As a result, NWS incurred obligations in excess of available appropriations.

During FYs 2008 and 2009, Commerce reported that NWS misused a mechanism known as a Summary Level Transfer (SLT).  Commerce states that, when properly used, an SLT allows financial officers to change the accounting codes of past expenses to correct errors in how expenses are charged.  However, Commerce reported that NWS instead used SLTs to change the accounting codes of expenses which had been appropriately charged to a program, project, or activity (PPA) that was experiencing a shortfall, to a PPA that NWS perceived as having more funds than needed.  Commerce also reported that, by doing so, additional funds were made available in the original PPA so that it could incur additional expenses.

Remedial Action Taken:  Commerce and NOAA took corrective action in response to the violations that occurred in FY’s 2010 and 2011 to prevent future violations of this nature.  The corrective actions included conducting a comprehensive review of how SLTs are used across the agency, ensuring that costs of common services are appropriately assessed, changing the supervisory structure of NWS and other NOAA lines offices, and conducting a training program for key personnel that addresses appropriation law concepts, including reprogramming, the ADA, and the appropriate use of SLTs.

Source:  Unaudited information GAO extracted from agency Antideficiency Act reports; for further information about a specific report, please contact the relevant agency.

 

Enclosure

Antideficiency Act Reports – Fiscal Year 2018 GAO No.: GAO-ADA-18-04

Agency No.:None Reported	Date Reported to GAO: June 15, 2018
Agency: Department of Commerce (Commerce)	Date(s) of Violation(s): Fiscal Years (FYs) 2009-2012
Account(s): None Reported	Amount Reported: None Reported

Description:  Commerce reported that it violated the Antideficiency Act (ADA) when employees made various purchase card transactions during fiscal years 2009 through 2012.  Commerce reported that the transactions included vendor-provided terms and conditions containing open-ended indemnification provisions that violate the ADA.

Remedial Action Taken:  Commerce reported that it found no evidence that the ADA violations were willfully or knowingly committed. Commerce did not report that any disciplinary action had been taken against the responsible parties involved.  Commerce reported that it worked with the Office of Management and Budget’s Office of Federal Procurement Policy and the Federal Acquisition Regulation (FAR) Council to draft revisions to the FAR to void these provisions as a matter of law starting in 2013.  FAR, 48 C.F.R. §§ 12.216, 52.212-4(u). Additionally, Commerce reported that it has instituted a training program that addresses vendor terms that could cause an Antideficiency Act violation for key personnel across the agency.  Commerce reported that this training was also incorporated in the agency’s required purchase card policy and training curricula.  In addition, Commerce reported that OMB has approved the internal financial management controls used by Commerce.  Commerce did not report that any disciplinary action had been taken against the responsible parties involved.

Source:  Unaudited information GAO extracted from agency Antideficiency Act reports; for further information about a specific report, please contact the relevant agency.

 

Enclosure

Antideficiency Act Reports – Fiscal Year 2018 GAO No.: GAO-ADA-18-05

Agency No.: None Reported	Date Reported to GAO: June 8, 2018
Agency: Department of Justice (Justice)	Date(s) of Violation(s): FY 2000-2016
Account(s): None Reported	Amount Reported: None Reported

Description:  Justice transmitted to the President of the Senate, the Speaker of the House, and to the President a letter regarding GAO’s findings of Antideficiency Act (ADA) violations in GAO’s 2016 report entitled:  “Firearms Data: ATF Did Not Always Comply with the Appropriations Act Restrictions and Should Better Adhere to its Policies.”  GAO-16-552.  Justice sent a copy of its letter to GAO.  In that report, we concluded that the Bureau of Alcohol, Tobacco, Firearms and Explosives violated the ADA when it incurred obligations between FY’s 2000 and 2016 in violation of a statutory prohibition on the use of its appropriation to consolidate or centralize records on the acquisition or disposition of firearms maintained by federal firearms licensees.GAO‑16‑552, appendix VII, at 68.

Justice disagreed with GAO and stated that it did not violate the ADA.  Justice stated that “[w]hile the issues found in GAO’s investigation raised policy concerns that have since been resolved, the Department has concluded that they do not rise to the level of Antideficiency Act violations.”  However, as we noted in our report, we have “consistently concluded that the use of appropriated funds for prohibited purposes violates the [ADA], because no funds are available for the purpose.” GAO-16-552, at 90 n. 58.

Remedial Action Taken:  Justice stated that GAO’s report “raised policy concerns that have since been resolved.”  For example, Justice has altered how certain firearms records are retained in response to GAO’s conclusions. 

Source:  Unaudited information GAO extracted from agency Antideficiency Act reports; for further information about a specific report, please contact the relevant agency.

 

Enclosure

Antideficiency Act Reports – Fiscal Year 2018 GAO No.: GAO-ADA-18-06

Agency No.: USSOCOM 16-02	Date Reported to GAO: August 9, 2018
Agency: Department of Defense, U.S. Special Operations Command (USSOCOM)	Date(s) of Violation(s): Fiscal Years (FYs) 2000-2015
Account(s): Operation and Maintenance (O&M), Defense-Wide, Weapons Procurement, Navy (WPN), International Military Education and Training (IMET), and Foreign Military Sales (FMS)	Amount Reported: $11,505,764.00

Description:  USSOCOM, through the Department of Defense, reported that violations of the Antideficiency Act (ADA) occurred when the Naval Special Warfare Center, and the Navy Special Warfare Command’s Naval Special Warfare Group 4 (NSWG-4) used appropriations for purposes for which they were not available.  One example provided was that some O&M and WPN amounts were used to subsidize the cost of providing maritime training to foreign students.  These appropriations were not available for this purpose.  As a result, USSOCOM reported that it incurred uncorrectable violations of 31 U.S.C. § 1301(a) and 31 U.S.C. § 1341(a)(1)(A).

Remedial Action Taken:  USSOCOM reported that it identified three individuals who were responsible for the violations; two of the individuals have retired from the U.S. Government, and discipline was not pursued.  Further, USSOCOM reported that one individual received a letter of reprimand from the Commander Navy Special Warfare Command’s Chief of Staff.  USSOCOM reported that it determined that the violations contained no willful or knowing intent on the part of the responsible individual to violate the ADA.

To prevent a recurrence of these types of violations, USSOCOM reported that NSWG-4 has changed its internal procedures to ensure that appropriations are no longer used in this fashion. 

Source:  Unaudited information GAO extracted from agency Antideficiency Act reports; for further information about a specific report, please contact the relevant agency.

 

Enclosure

Antideficiency Act Reports – Fiscal Year 2018 GAO No.: GAO-ADA-18-07

Agency No.: None Reported	Date Reported to GAO: August 27, 2018
Agency: Department of Agriculture (USDA)	Date(s) of Violation(s): Fiscal Years (FYs) 2015 and 2016
Account(s): Office of the Under Secretary for Rural Development; Office of the Under Secretary for Food, Nutrition, and Consumer Services; and Office of the Assistant Secretary for Civil Rights	Amount Reported: $1,388,000.00

Description:  USDA reported that it violated 31 U.S.C. § 1341 during FY 2015 and FY 2016 when, through Economy Act transfers, it obligated funding appropriated for Rural Development, Food and Nutrition Service, and the Office of Civil Rights to cover salary and benefits for personnel in their respective Office of the Secretary (OSEC) offices resulting in expenditures in excess of available funding.

Remedial Action Taken: USDA reported that it identified several individuals responsible for the violation, but determined that there was no willful or knowing intent on the part of those responsible to violate the ADA.  USDA did not report that any disciplinary action was taken against the responsible individuals.

To prevent a recurrence of such violations, USDA reported that it will address deficiencies in the internal control process within the Office of Human Resources Management (OHRM) through an improved process that centralizes execution of all OSEC resources.  USDA reported that the new process requires OHRM to obtain the  Office of the Chief Financial Officer’s approval of adequate funds and also requires each OSEC office to conduct upfront planning that limits the number of OSEC resources so that it remains within the OSEC budget.

Source:  Unaudited information GAO extracted from agency Antideficiency Act reports; for further information about a specific report, please contact the relevant agency.

 

Enclosure

Antideficiency Act Reports – Fiscal Year 2018 GAO No.: GAO-ADA-18-08

Agency No.: None Reported	Date Reported to GAO: September 10,  2018
Agency: Department of Veterans Affairs (VA)	Date(s) of Violation(s): Fiscal Year (FY) 2015
Account(s): Medical Support & Compliance (MS&C)	Amount Reported: $890,000

Description:  VA reported that a violation of 31 U.S.C. § 1502 and of 31 U.S.C. § 1341 occurred when the Durham VA Medical Center obligated FY 2015 funds to cover FY 2016 and potentially FY 2017 metered mail costs.

Remedial Action Taken:  VA reported that the individual found responsible for the violation has since retired, and consequently no disciplinary action was taken.  Further, VA reported that it determined that there was no knowing or willful intent by the responsible party to violate the Antideficiency Act.

In addition, VA reported that it will provide training to employees on the Antideficiency Act and on 31 U.S.C. § 1502.

Source:  Unaudited information GAO extracted from agency Antideficiency Act reports; for further information about a specific report, please contact the relevant agency.

 

Enclosure

Antideficiency Act Reports – Fiscal Year 2018 GAO No.: GAO-ADA-18-09

Agency No.: None Reported	Date Reported to GAO: September 28, 2018
Agency: Department of Transportation (DOT)	Date(s) of Violation(s): Fiscal Year (FY) 2017
Account(s): None Reported	Amount Reported: None Reported

Description:  DOT transmitted to the President of the Senate, the Speaker of the House, and the President a letter regarding our decision in which we concluded that DOT violated an anti-lobbying provision in the Financial Services and General Government Appropriations Act, 2017, as well as the Antideficiency Act (ADA), when it “retweeted” and “liked” a tweet originally posted on a third-party Twitter account urging followers to “[t]ell Congress to pass” pending legislation.  B-329368, Dec. 13, 2017.  DOT sent a copy of its letter to GAO.

DOT disagreed with GAO and stated that it did not violate either the anti-lobbying provision or the ADA, and that “even if the actions in question were treated as an ADA violation, they involved no measurable cost in terms of the use of Federal funds.”  However, as we noted in our decision, “there is no de minimis violation of grassroots lobbying,” and because DOT expended funds in violation of the anti-lobbying provision, it also violated the ADA.  B-329368.

Remedial Action Taken:Although DOT stated that it did not violate the ADA, it also stated that it, nonetheless, will not take such actions as led to the violation in the future. 

Source:  Unaudited information GAO extracted from agency Antideficiency Act reports; for further information about a specific report, please contact the relevant agency.