This article is also cross-posted to my intelink blog.
Part of the Antideficiency Act (codified at 31 U.S.C. § 1342) reads as follows:
An officer or employee of the United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property. . . .
I have heard this admonition at various times in the context of Open Source Software: if the government cannot accept “voluntary services”, then presumably it cannot allow people to volunteer to write open-source software for the government. Maybe it can’t even use open source software, since it was either written by volunteers or at least licensed for use voluntarily…?
These concerns are, of course, completely wrong, as I will endeavor to show:
I first read the above bit of law in “the Red Book“, more formally known as “Principles of Federal Appropriations Law”, published by the Government Accountability Office (GAO) in three volumes and weighing in at 2500+ pages. It contains some 23 pages of explanation and case law about §1342 alone. The Director of the GAO is also the US Comptroller General, and decisions of the Comptroller General about appropriations law are essentially binding on the executive branch (q.v. 31 USC § 3526).
In the exegesis of §1342, the Red Book explains that the intent of the prohibition on Voluntary Services is to prevent incurring an obligation exceeding the amount appropriated by the Congress – which is the main thrust of the Antideficiency Act, as codified in the more well-known §1341. By accepting voluntary services, a government employee might obligate the government to pay for those services after-the-fact. I can just imagine a brash contractor saying, “Well, sure, I volunteered to help, but I didn’t mean I was gonna do it for free! I expected to be paid for that work!” Here’s what the Red Book says (p. 6-94):
If an agency cannot directly obligate in excess or advance of its appropriations, it should not be able to accomplish the same thing indirectly by accepting ostensibly “voluntary” services and then presenting Congress with the bill, in the hope that Congress will recognize a “moral obligation” to pay for the benefits conferred…
[Aside: At this moment in history (during the 2013 US Government shutdown), I personally find great irony in this prohibition. As someone who has a bona-fide employment contract with the United States federal government, I am currently not being allowed to work (and am not being paid) because the Congress does not apparently recognize a “moral obligation” to pay me for the work that they have contracted me to perform. How much less should I worry about Congress feeling a moral obligation to pay for services for which there is no contractual basis whatsoever?]
Regardless, the Red Book goes on to explain (p. 6-97):
[The statute] was intended to guard against claims for compensation. A service offered clearly and distinctly as gratuitous with a proper record made of that fact does not violate this statute against acceptance of voluntary service. An appointment to serve without compensation which is accepted and properly recorded is not a violation of [31 U.S.C. § 1342], and is valid if otherwise lawful.”
When I drafted the Contributor License Agreement used by the OZONE Platform and the REDHAWK Software Defined Radio, I added a paragraph (later reviewed and approved by Counsel) specifically to address this concern:
9. You acknowledge that you are providing Your Contribution to the USG on a gratuitous basis and that this does not create an obligation on the part of the USG of any kind, including, but not limited to: remuneration, incorporation of Your Contribution into a government work, or any other obligation.
This clause was added specifically to address the concern that the government could not accept patches to government-managed software baselines, because such acceptance might constitute “voluntary services”. There is a widespread misconception that the government cannot accept things for free. Not so, says the Red Book. Free (i.e. gratis) is okay; volunteer (i.e. unsolicited) can be a problem. It is worthwhile to establish that free is really free, but free is not a problem in and of itself.
[Further aside, also detailed in the exegesis of §1342 is case law and reasoning why federal employees cannot come to work during a furlough and simply declare themselves to be working “gratis” – essentially because their compensation is specified by law and cannot thus be “waived”.]
In fact, free is actually a good thing. Especially when you have no money. Like, now, for instance.
Well appreciate the contribution of the contribution agreement that allows REDHAWK, OZONE Platform / OWF, and hopefully others to accept contributions to government-affiliated open-source projects. Perhaps it itself should be made available as an open-source project, to be linked or referred to by other projects?
Timely post considering all the wailing and gnashing of teeth regarding the lack of open source in Healthcare.gov
a refreshing dose of common sense in a town that seems to have shortage of it. thanks!
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