Agencies frequently request guidance about the propriety of using personal gifts, novelty items, or souvenirs (“trinkets”) to attract attention to an agency program or the agency itself. For example, an agency might ask whether a trinket may be used as a recruiting tool, to commemorate an event, to inform the public, or to educate agency employees about an important topic. As a rule, appropriated funds may only be used for authorized purposes; therefore, appropriated funds may be used to purchase trinkets only if there is specific statutory authority to do so or if it is a necessary expense of the agency. In practical terms, trinkets may be purchased and distributed in only very limited instances.
Whether trinkets may be provided in a given situation can vary dramatically depending on the facts of the situation, but the following is designed to provide some general guidance on trinkets and to answer some of the most frequently asked questions.
Q. Can my operating unit purchase and distribute trinkets at our next program for our employees or the public?
A. Generally, no. Appropriated funds may not be used for trinkets unless there is specific statutory authority to do so or if it is a necessary expense of the agency. E.g., 68 Comp. Gen. 226 (1989). In other words, appropriated funds may only be used for the purpose for which they were appropriated (provided) by Congress.
Q. If my operating unit does not have statutory authority to purchase trinkets is there another means by which trinkets may be purchased and distributed?
A. Yes. In the absence of specific statutory authority, the “necessary expense rule” must be applied. Under this rule, appropriated funds may be used for an expenditure that is necessarily incident to accomplishing an authorized agency function so long as the expenditure is not otherwise prohibited by law. In applying the necessary expense rule, an agency may only purchase items in the nature of gifts or souvenirs (trinkets) for distribution if there is a direct link between the distribution of the items and the purpose of the appropriation to be used.
Q. What exactly is a direct link?
A. As provided above, under the necessary expense rule, an agency may not purchase trinkets (novelty items, souvenirs, personal gifts, etc.) unless there is a direct link between the items and the purpose of the appropriation to be charged. An agency must demonstrate that the items will directly further the agency’s mission. In other words, the very act of distributing the trinket can be said to accomplish the agency’s mission.
Q. How do I determine if my trinket meets the “direct link” standard and therefore can be considered a necessary expense (and proper use of appropriated funds)?
A. Consider the following questions when applying the necessary expense rule:
(1) What is the trinket?
(2) Who will receive it?
(3) What is the purpose of the trinket’s distribution?
(4) Does this purpose directly further the mission of the agency?
(5) How does the distribution of the trinket fulfill the purpose?
Sample illustration of a trinket analysis: (1) An agency may provide mugs containing an “informant” hotline phone number printed on the surface (2) to possible informants (3) to ensure that the informant always has the hotline number easily on hand (4) if the agency has a law enforcement mission, (5) receiving informant information is imperative to the accomplishment of that mission, and (6) the agency has determined that the mugs are an effective and efficient means by which informants can contact the agency more easily, thereby facilitating quicker and more effective law enforcement.
Q. What are some examples of trinkets that might meet the necessary expense rule?
A. Examples of trinkets that might meet the necessary expense rule:
- If the trinket contains significant informational content that the agency has a statutory mission to disseminate to the intended recipients, the trinket has little or no intrinsic value on its own, and the trinket is the best or only method to convey the information.
GAO illustrations of expenditures that were found by to be proper:
- Caps and other items distributed to Alaska residents in furtherance of Agency’s conservation plan. The items were printed with images of a threatened species whose appearance could easily be confused by residents with a non-threatened species, which enabled residents to identify the threatened species to help protect it from further elimination. B-318386 (Aug 12, 2009).
- Calendars distributed for use by a military chaplain’s office to disseminate pertinent information about services available to military personnel and their families. The chaplain’s office had a statutory duty to hold and coordinate religious services, and publicizing the services was necessary to effectively carry out the statutory duty. 62 Comp. Gen. 566 (1983).
Q. What are some examples of trinkets that might not meet the necessary expense rule?
A. Examples of trinkets that may not meet the necessary expense rule:
- If an agency can disseminate the information included on the trinket without distributing the trinket.
- If the information on the trinket is commonly available.
- If the trinket is being provided to generate goodwill.
- If the trinket is being provided to favorably remind the recipient of his/her contact with the agency.
GAO illustrations of expenditures that were found by to be in the nature of personal gifts and therefore improper:
- Winter caps purchased by Agency to be given to volunteer participants in a weather observation program to create “esprit de corps” and enhance motivation.
- Photographs taken by Agency at the dedication of a new building to be given as “mementos” to persons attending the ceremony.
- Buttons procured by Agency and given out to members of the public to show Agency’s support of certain new policies.
- Cuff links and bracelets to be given to foreign visitors by the Agency to promote tourism to the United States.
- Pens, scissors, and shoe laces purchased by Agency to be given to potential employees for recruiting purposes. Items were deemed nothing more than “favorable reminders of Agency” and did not facilitate Agency’s acquisition of information necessary to its recruiting efforts.
- Gift certificates to local restaurants and silk plants distributed by Agency in celebration of women’s Equality Week. There was no evidence of how these items advanced the agency’s celebration.
Q. Can our operating unit give out prizes?
A. If the agency has specific statutory authority, it may give away prizes. An example of when the Government explicitly is authorized to offer prizes includes, for instance, the America Competes Reauthorization Act of 2010 (also known as the America Creating Opportunities to Meaningfully Promote Excellence in Technology, Education, and Science Reauthorization Act of 2010), Pub. L. No. 111-358, which provides that the head of an agency may carry out a program to award prizes competitively to stimulate innovation that has the potential to advance the mission of the respective agency.
Absent such explicit statutory authority, to award a prize, it must be established that there is a direct link between the purpose of the prize and the purpose of the agency’s appropriations. Prizes may be permissible where an agency establishes that it has a statutory need to collect information from individuals and where providing a “prize” is a necessary incentive to ensure the Government’s receipt of the information. For example, if an agency’s mission includes the protection of animal species, which involves researching and monitoring the migration habits of the species, it could offer a nominal prize for the return to the agency of tags placed on the animal that would provide the agency with useful information for its research regarding the location of and circumstances under which the animal was captured. In such a case, distributing the prize directly enables the agency to further its research mission by helping to ensure that the agency receives the information needed for it to effectuate its research.
However, as a counter-example, an agency may not expend appropriated funds on prizes to be distributed merely to entice individuals to visit an agency’s booth at a conference or for correctly answering informational quiz questions geared at increasing the public’s awareness of the agency’s mission. In each case, the purpose of the prize is to engender goodwill, and it does not directly further the agency’s mission.
Q. But, we give out performance awards to Government employees. Is this permitted?
A. The Government Employees Incentive Awards Act (GEIAA), 5 U.S.C. § 4501-4506, authorizes agencies to make awards, including cash awards, and to incur necessary expenses to recognize employees who by their suggestion, invention, superior accomplishment, or other personal effort contribute to the efficiency, economy, or other improvement of Government operations or perform a special act or service in the public interest in connection with or related to his/her official employment. Accordingly, agencies may provide awards to employees under existing awards programs approved by the Office of Human Resources Management or individual operating unit’s servicing human resources office.
For further reference, please see the Department’s Performance Management System Handbook, “Performance Management” section: http://hr.commerce.gov/Employees/TrainingandDevelopment/DEV01_006173
Q. Can we give awards to contractors, private citizens, or organizations as we do for Government employees?
A. No. Awards may not be given to contractors, private citizens, or organizations unless your agency has specific statutory authority to provide such awards. However, your operating unit may provide to contractors, private citizens, or organizations honorary recognition in the form of a standardized certificates of appreciation for special services or other beneficial contributions to the Department. Please work with the Office of Human Resources Management or your individual operating unit’s servicing human resources office if your operating unit would like to issue an honorary certificate of appreciation.
For further reference, please see the Department’s Performance Management System Handbook, “Honorary Recognition” section: http://hr.commerce.gov/Practitioners/PerformanceManagementandAwards/DEV01_006318
*Because the circumstances under which appropriated funds may be used to procure trinkets can vary from case to case, if you need assistance in applying the direct link standard to determine whether the procurement would constitute a necessary expense of the agency, please feel free to contact the General Law Division, at (202) 482-5391.