The Office of Management and Budget (OMB) wants federal agencies to make sure that their use of social medium platforms is compatible with Federal law, regulations, and practice.
In a memo to agency heads, OMB Controller Danny Werfel notes that federal agencies are using more internet-based social media products and services to promote openness, transparency, and citizen engagement. While acknowledging that these products are important tools, OMB is concerned that federal employees may violate the Antideficiency Act when, acting on behalf of the government, they consent to an online Terms of Service (TOS) agreement for these products and services.
The Antideficiency Act prohibits an federal government or District of Columbia government employee from making or authorizing an expenditure or obligation that exceeds the amount available in an appropriation or involving the government in a contract or obligation for payment before an appropriation is enacted.
The memo references an attached opinion by the Justice department’s Office of Legal Counsel (OLC) that addresses Antideficiency Act problems federal employees may have when contracting for these products. For example, a federal employee having contract authority may, in some cases, violate the Antideficiency Act if the employee opens an agency account for a social media product governed by Terms of Service (TOS) that includes an open-ended indemnity clause. This could result in a legal liability for an amount that exceeds an agency’s appropriation.
The memo directs agencies to be diligent in their review of the set of terms that govern access to the use of these products. OMB wants to ensure that agencies are following General Services Administration (GSA) guidelines for reviewing applicable TOS.
The GSA guidelines (attached to the OMB memo) note that agencies should have policies that govern use of social medium platforms. These policies should require agency approval prior to the opening of an agency account for social media products and services. The memo directs agencies to follow the steps in the GSA guidance, if appropriate.
To reinforce compliance with the Antideficiency Act and promote a consistent government-wide approach to the OLC opinion, OMB has requested the Federal Acquisition Regulatory Council to issue an interim rule amending the Federal Acquisition Regulation (FAR) to help prevent Antideficiency Act violations. The amendment would require contracting officers to notify contractors that a TOS agreement or end user license agreement (EULA) is unenforceable if it requires the government or government authorized end-user to indemnify the contractor for damages or costs incurred.
