HHS Policy on the Use of Appropriated Funds for Food

2.1 General

It is the Department’s policy that OPDIVs and STAFFDIVs shall not use appropriated funds (whether from an annual appropriation, multi-year appropriation, appropriated user fee, mandatory appropriation, gift funds, or reimbursements from such appropriations, etc.) to purchase food (whether for conferences or meetings; for meals, light refreshments, or beverages; or for Federal or non-Federal participants) unless OPDIVs and STAFFDIVs document that the provision of food is a necessary expense^[1] and one of the established exceptions below applies. 

This new policy rescinds the previous “food waiver” contained in the June 12, 2007 Departmental Policy in its entirety; and does not apply to the purchase of food for:

• patients;
• lab animals;
• animal and human test subjects; or
• nutritional/toxicology counseling, studies or samples.

The list of established exceptions remains unchanged.  However, the exceptions have been further clarified and the former waiver process – which previously allowed for the purchase food using appropriated funds if the conditions expressed in the former policy were met and if approved by the OPDIV or STAFFDIV Head – has been rescinded. 

2.2 Exceptions

The four exceptions to the general policy are as follows:

1. Training Events:  OPDIVs and STAFFDIVs are authorized to pay for government employees' attendance at a non-HHS government or non-government conference (that constitutes an authorized employee training program) that includes food, if the registration fee includes the cost of food and the cost of food cannot be separated from the registration fee.  However, OPDIVs and STAFFDIVs shall not purchase food and refreshments for HHS funded training events, such as conferences, workshops, symposia, and meeting, authorized under the Government Employee Training Act.
2. Award Ceremonies:  The Government Employees’ Incentive Awards Act authorizes the use of appropriated funds to provide light refreshments, such as snacks and beverages, at federal employees’ awards ceremonies when it has been determined that such food would materially enhance the awards ceremony in furtherance of the objectives of the awards.  However, awards ceremonies must emphasize public recognition of the employees’ performance and allow other employees to honor and congratulate their colleagues.  Therefore, the ceremonies cannot be limited to the employees receiving the awards.
3. Representation Fund:  HHS and OPDIV Representation Funds are budget allocations that are specifically authorized by appropriation to facilitate official reception and representation activities that further the interests of the Department.  The funds may be used to purchase food for official reception and representation activities.
4. Emergencies:  There is a limited exception for extreme emergencies involving imminent danger to human life or the destruction of federal property.  This exception, however, is available only in rare situations and is heavily dependent on the facts presented in a particular situation.

2.3 Additional Exceptions and Clarifications

1. Grants and Cooperative Agreements:  When a grantee conducts a conference as an ancillary effort under its grantor cooperative agreement, food-related costs may be considered allowable as prescribed in OMB Circular A-21 (cost principles applicable to educational institutions), OMB Circular A-122 (cost principles applicable to non-profits), HHS’ Awarding Agency Grants Administration Manual, and HHS’ Grants Policy Statement.  Such grants and cooperative agreements are not subject to the approval requirements below.  However, as a matter of Departmental policy, when the primary purpose of the grant or cooperative agreement is to conduct a conference, such as NIH’s Support for Conferences and Scientific Meetings R13/U13 grants and other similar grants, the requirements in Section 2.4 below apply.
2. Gift Funds.  Some OPDIVs and STAFFDIVs have been granted statutory authority to accept, retain, and use gifts.  In that event, such OPDIV or STAFFDIV may use all or a portion of the gift to purchase food if the appropriate OPDIV or STAFFDIV official determines that the purchase of food: (a) carries out the mission of HHS or one of its OPDIVs or STAFFDIVs or otherwise meets the statutory criteria; (b) satisfies the conditions of the gift; (c) is consistent with HHS’ or the OPDIV’s or STAFFDIV’s policy on gifts; and (d) is a necessary expense.  The OPDIV or STAFFDIV should consult HHS attorneys if there are questions regarding either the conditions of the gift or the legal criteria for the OPDIV’s or STAFFDIV’s gift acceptance authority.
3. Use of Conference Fees.  Agencies must have statutory authority to charge a fee for one of its programs or activities.  In addition, even if an agency has authority to charge a fee, it may not retain and use the amounts collected without statutory authority.  An appropriation establishes a maximum authorized program level, meaning that an agency, absent statutory authorization, cannot operate beyond the level that can be paid for by its appropriations. An agency may not circumvent these limitations by augmenting its appropriations from sources outside the government, unless Congress has so authorized the agency.  Questions in this topic should be address to the HHS Office of General Counsel, General Law Division.

2.4 Conference Services and Meeting Space

Given the policy set forth above, and unless one of the exceptions applies, HHS’ solicitations, funding opportunity announcements, contracts (such as events management and logistical support contracts), purchase orders, grants, and agreements for conferences or meeting space must specifically prohibit the inclusion of food and meals and state that food and meals are not to be provided and are an unallowable expense.  In effect, when acquiring space to conduct conferences or meetings, OPDIVs and STAFFDIVs may not accept food if offered at the same price as without food.

2.5 Conference Services and Meeting Space

Regarding the Training Events exception, approval of attendance at a non-HHS, other government, or non-government conference, where food is included within and cannot be separated from the registration fee, shall follow the OPDIV’s or STAFFDIV’s standard practice for approving training, such as approval of the SF-182, Authorization, Agreement and Certification of Training, by the appropriate training official.  OPDIVs and STAFFDIVs shall refer to the HHS travel manual with respect to the applicable requirements for reduced per diem allowance when meals are provided as part of a conference or training event.

Before food may be purchased under the remaining exceptions or through gift funds or conference fees, the OPDIV or STAFFDIV project officer shall submit to the cognizant HHS contracting officer, grants management officer, or purchase card holder a memorandum:

• justifying that the provision of food is a necessary expense;
• identifying the applicable exception; and
• indicating the name and location of the event, the number of employees attending the event, and the estimated cost of the food. 

Approval of such justifications shall be made by the OPDIV or STAFFDIV Head or one of their direct reports.

2.6 Record Retention 

The contracting officer, grants management officer, and/or purchase card holder must retain the approved memorandum in the associated administrative file (e.g. contract file, etc.).  OPDIVs and STAFFDIVs are also encouraged to maintain a central file of all approved memorandums for reporting or other purposes

2.7 Implementation Requirements

OPDIVs and STAFFDIVs shall implement internal policies and practices to: (1) ensure consistency across their organizations regarding the documentation and approval of requests to purchase food, and (2) meet the record retention requirements addressed above.

2.8 Additional Information

This policy may be supplemented as appropriate through questions and answers published on the OGAPA website (http://www.hhs.gov/asfr/ogapa/index.html) and may result in changes to the HHS Acquisition Regulation, Awarding Agency Grants Administration Manual, and Grants Policy Statement.  Questions regarding this policy may be addressed to Andrea Brandon, Deputy Assistant Secretary for the Office of Grants and Acquisition Policy, at [email protected].