Applicability of the Miscellaneous Receipts Act to Personal Convenience Fees Paid to a Contractor by Attendees at Agency-Sponsored Conferences ( 2006 )

Applicability of the Miscellaneous Receipts Act to
Personal Convenience Fees Paid to a Contractor by
Attendees at Agency-Sponsored Conferences
“Personal convenience” fees that attendees at agency-sponsored conferences pay to private contractors
are not subject to the Miscellaneous Receipts Act.
November 22, 2006
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
DEPARTMENT OF COMMERCE
Many agencies, including within the Department of Commerce, host public
conferences where agency officials can exchange ideas and information with peers
outside the agency on topics relating to the agency’s statutory mission. Often the
agencies hire a private contractor to help plan and administer these conferences.
The contractor may collect fees from conference attendees to cover its costs of
providing certain goods and services to the attendees. You have asked whether
these fees are subject to the Miscellaneous Receipts Act (“MRA”), 31 U.S.C.
§ 3302(b) (2000). We conclude that they are not.
I.
In sponsoring a conference, you have explained, it is common for an agency to
hire a contractor, paid out of appropriated funds, to manage logistics. It also has
been common for agencies to authorize such a contractor (1) to provide meals,
lodging, refreshments, and other goods and services to conference attendees and
(2) to charge the attendees a “personal convenience” fee to cover the costs of these
items. You distinguish the fees collected under such a scenario from fees that a
contractor might collect for the agency, to cover the agency’s costs in hosting the
conference. 1 Agencies within the Department of Commerce have generally had
little if any say in the amount of any fee. Sometimes, they have required the
contractor to make food available to conference attendees and have retained the
right to some input to ensure against lavish arrangements or excessive charges that
would discourage attendance, but otherwise they have left the contractor free to
deal directly with the attendees. Any fees are collected at the discretion of the
contractor, not at the direction of the government.
1
Whether an agency could pay the cost of personal convenience items from its appropriations is a
separate question, which we do not address. As you recognize, 31 U.S.C. § 1345 forbids an agency in
many cases from using an appropriation for “travel, transportation, and subsistence expenses for a
meeting.” See generally Use of Appropriations to Pay Travel Expenses of International Trade
Administration Fellows, 28 Op. O.L.C. 269 (2004).
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This practice was called into question by the Comptroller General’s 2005 opin-
ion in Matter of: National Institutes of Health—Food at Government-Sponsored
Conferences, B-300,826, 2005 WL 502825 (“NIH”). That opinion addressed
whether an agency could charge and retain a registration fee to defray the costs of
meals and light refreshments at a conference that the Institutes were hosting. The
Comptroller General advised that, under the MRA, the Institutes could not retain
any fee. He added: “Nor could NIH authorize its contractor to charge a fee to
offset costs, because, pursuant to [the MRA], a contractor receiving money for the
government may not retain funds received for the government to pay for the
conference costs.” Id. at *6. The Comptroller General did not explain why, in such
situations, the contractor would be “an official or agent of the Government” under
the MRA in receiving payment from attendees for its services to attendees, or why
those fees that the contractor received would be received “for the Government.”
See 31 U.S.C. § 3302(b). He did recognize, however, that “the participants may
cover the costs of their food using their own personal funds.” NIH, 2005 WL
502825, at *6.
The Comptroller General reiterated this position in Contractors Collecting Fees
at Agency-Hosted Conferences, B-306,663, 2006 WL 39435 (“Contractors”). He
stated that “when an agency lacks statutory authority to charge a fee at a confer-
ence and retain the proceeds, neither the agency hosting a conference, nor a
contractor on behalf of the agency, may do so.” Id. at *1 (emphasis added). You
question why, if attendees may purchase meals, lodging, and refreshments “using
their own personal funds,” a contractor could not offer such items to the attendees
and then retain the attendees’ payments from their own personal funds.
II.
We agree that a private contractor may, consistent with the MRA, retain fees it
receives from conference attendees for goods and services such as meals, lodging,
and refreshments that the contractor provides to the attendees. The MRA requires
as follows: “[A]n 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. § 3302(b). In
the circumstances you have described, the fees are not received “for the Govern-
ment” but rather collected by contractors for their own use. 2
2
Because we answer your question on this basis, we need not determine whether the contractors
could be considered “agent[s] of the Government” in their receipt of the fees, or whether the
government constructively “receive[s]” the fees, see generally Effect of 31 U.S.C. § 484 on the
Settlement Authority of the Attorney General, 4B Op. O.L.C. 684, 688 (1980). On the former question,
there is an argument from one of the sanctions for violating the MRA—removal “from office,” 31
U.S.C. § 3302(d)—that a contractor, not holding any “office,” cannot be subject to the MRA. The D.C.
Circuit has employed this reasoning. See Thomas v. Network Solutions, Inc., 176 F.3d 500, 511 (D.C.
Cir. 1999) (“This sanction makes no sense with respect to a private actor like Network Solutions.”); cf.
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Opinions of the Office of Legal Counsel in Volume 30
The most natural reading of the phrase “for the Government” in the MRA is
that it describes something intended to be used by the government. See 6 Oxford
English Dictionary 24 (Clarendon 2d ed. 1989) (defining “for” as “[i]ntroducing
the intended recipient, or the thing to which something is intended to belong, or in
connexion with which it is to be used”); cf. Motor Coach Indus., Inc. v. Dole, 725
F.2d 958, 968 (4th Cir. 1984) (affirming injunction against contracts between
Federal Aviation Administration and airlines under which the FAA waived certain
fees and airlines deposited money into a trust fund: “the Trust was an attempt by
the FAA to divert funds from their intended destination—the United States
Treasury”) (emphasis added). This interpretation is bolstered by the MRA’s
statutory history and this Office’s interpretation of the MRA’s earlier language. In
its original form, that act provided as follows:
[T]he gross amount of all duties received from customs, from the
sales of public lands, and from all miscellaneous sources, for the use
of the United States, shall be paid by the officer or agent receiving
the same into the treasury of the United States at as early a day as
practicable.
Act of Mar. 3, 1849, ch. 110, § 1, 9 Stat. 398, 398 (emphasis added). The phrase
“for the use of the United States” remained in the act for 133 years, until Congress
in 1982 amended a large portion of title 31, as discussed below.
The reference to “use” indicated that the money must be intended for use by, or
meant to cover an obligation or expense of, the United States. Thus this Office in
1978 explained that the phrase “for the use of the United States” in the MRA “has
been interpreted to require that the funds in question are ‘to be used in bearing the
expense of the administration of the Government and paying the obligations of the
United States.’” Memorandum for the Attorney General, from John M. Harmon,
Assistant Attorney General, Office of Legal Counsel, Re: Legislation Regarding
FBI Undercover Operations at 4 (July 27, 1978) (“Undercover Operations”)
(quoting Disposition of Excess Railway Operating Income, 33 Op. Att’y Gen. 316,
321 (1922)). We added that “funds must be available to the United States for
Scheduled Airlines Traffic Offices, Inc. v. Dep’t of Def., 87 F.3d 1356, 1361 (D.C. Cir. 1996) (referring
to the MRA’s “requirement that a Government official ‘receiving money for the Government from any
source’ deposit the money in the Treasury”). On the other hand, section 3302(d) also includes forfeiture
as a sanction, which might be available against a non-officer, and the D.C. Circuit’s reading does not
clearly give content to the term “agent,” as distinct from “official.” The concept of “[a]gency encom-
passes a wide and diverse range of relationships and circumstances,” including but not limited to the
relationship between “employer and employee.” Restatement (Third) of Agency § 1.01 cmt. c (2006).
This Office has not previously resolved the meaning of the term “agent” in the MRA. Cf. Memorandum
for the Attorney General, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel,
Re: Legislation Regarding FBI Undercover Operations at 4, 8 (July 27, 1978) (using “agent” in the
sense of FBI Special Agents and suggesting curing an MRA problem involving income received in the
FBI’s undercover business operations by instead “associat[ing] with a private business”).
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Applicability of the Miscellaneous Receipts Act to Personal Convenience Fees
disposition on its own behalf.” Id. And in applying the MRA, we noted that “the
funds in issue are at the disposal of the United States” and that “[t]his availabil-
ity . . . must mean that they were received ‘for the use of the United States.’” Id.
See also id. at 6 (purpose of MRA was to “require Congressional control of all
funds that are available to the United States for disbursement, regardless of the
source of the funds or the reason the funds were surrendered to the United
States”).
In 1982, in re-codifying the MRA at its present location in section 3302, Con-
gress shortened the phrase to its current form by (among other things) deleting
“the use of.” Act of Sept. 13, 1982, Pub. L. No. 97-258, 96 Stat. 877, 948. But the
1982 statute itself explained that Congress’s purpose was simply “[t]o revise,
codify, and enact without substantive change certain general and permanent laws,
related to money and finance.” Id. at 877 (emphasis added). This Office repeatedly
has recognized that the 1982 revision of the MRA was not intended to work any
substantive changes but rather to eliminate unnecessary words. E.g., Application of
31 U.S.C. § 3302(b) to Settlement of Suit Brought by the United States, 7 Op.
O.L.C. 36, 37 n.3 (1983). This understanding also finds support in the background
principle that “‘it will not be inferred that Congress, in revising and consolidating
the laws, intended to change their effect unless such intention is clearly ex-
pressed.’” Finley v. United States, 490 U.S. 545, 554 (1989) (quoting Anderson v.
Pac. Coast S.S. Co., 225 U.S. 187, 199 (1912)).
With this understanding of the MRA’s text, it is clear that personal convenience
fees, such as you have described, are not money received “for the Government.”
Rather, they are “for” the event planner. The fees are not used, and are not
intended to be used, by or for the benefit of the host agency that hires the event
planner. The host agency makes no claim to the fees; apart from the question of
the MRA’s applicability, the planner “is under no duty to turn over any portion to
the federal government,” but rather “the monies belong to” the contractor. Thomas
v. Network Solutions, Inc., 176 F.3d 500, 511 (D.C. Cir. 1999). The conference
attendees pay the fees to the event planner so that they can obtain meals, lodging,
and refreshments from the planner. The planner in turn accepts the fees to cover its
costs in providing these goods and services to the attendees. The fees are not
“available to the United States for disposition on its own behalf,” Undercover
Operations at 4, “at the disposal of the United States,” id., or “surrendered to the
United States,” id. at 6.
Nor do the personal convenience fees compensate the event planner for any
contractual obligation that the host agency owes to it, or enable the agency to
avoid expending appropriations on “services that statutes required the agenc[y] to
perform.” Thomas, 176 F.3d at 511. In Thomas, the court approved retention by
the private Network Solutions of fees it collected for registering internet domain
names because, among other things, performing such registration was not a duty of
the National Science Foundation. Similarly, the Comptroller General has recog-
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nized that a “government official or agent is deemed to receive money for the
government under the [MRA] if the money is to be used to bear the expenses of the
government or pay government obligations.” SBA’s Imposition of Oversight
Review Fees on PLP Lenders, B-300,248, 2004 WL 77861, at *7 (emphasis
added). The Comptroller General concluded that the Small Business Administra-
tion (“SBA”) had violated the MRA by imposing fees on lenders of SBA-
guaranteed loans for reviews that the SBA was required by statute to conduct, and
which the lenders paid to contractors who helped to conduct the reviews, because
“the review fees paid by the lenders substitute for payment that SBA would
otherwise make.” Id. at *9. In the two subsequent Comptroller General opinions
discussed above in Part I, the Comptroller General cited this 2004 opinion in
general, without discussion. See NIH, 2005 WL 502825, at *6; Contractors, 2006
WL 39435, at *1. Here, the host agency has no obligation, statutory or contractual,
to provide meals, lodging, or refreshments to conference attendees. The fees are
not “to be used in bearing the expenses of the administration of the Government
and paying the obligations of the United States,” Undercover Operations at 4
(internal quotation marks omitted), or by an agency “to offset expenses” of its
operations, id. at 8. Thus, the personal convenience fees are not received “for the
Government” and so are not subject to the MRA.
C. KEVIN MARSHALL
Deputy Assistant Attorney General
Office of Legal Counsel
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