When Purpose Trumps Procedure

Sometimes, even in matters of appropriations law, the reason for going outside of standard operating procedure can trump following it.

While teaching a recent Appropriations Law Seminar, a student asked a very good question about a situation where the IT staff of the agency directed the procurement office to purchase equipment without going through traditional channels.

The IT staff wanted to procure a data line that would enable hearing impaired employees to make video telephone calls. The agency is normally supposed to go through the department’s information systems agency to procure data lines, but the IT department warned that the type of data line they would provide was not appropriate for the situation. They even cautioned that obtaining a waiver from the information systems agency to procure the data line through a local cable company could take up to 6 months!

So, after checking with their command deputy, the procurement office had a verbal approval to purchase the data line through the local cable company instead of the department information systems agency. But my student wondered:

Without a formal waiver from the information systems agency, will this purchase hold up against the scrutiny of an audit?

My opinion is that, yes, this purchase would not be questioned if the agency is audited in the future. Obtaining the data line for hearing impaired employees falls under the Rehabilitation Act of 1973, which requires the U.S. government to provide reasonable accommodation to employees with a disability. To not do so may be considered discrimination against employees who have mental or physical impairments that limit one or more major life activities.

Of course, everyone, including the local cable company, needs to remember that the data line remains the property of the U.S. government.