Open Source Software volunteers forbidden in government? (Antideficiency Act)
Sometimes people ask me if open source software (OSS) is forbidden in the U.S. federal government due to a prohibition on “voluntary services”. Often they don’t even know exactly where this prohibition is in law, they just heard third-hand that there was some problem.
It turns out that there is no problem, as I will explain. Please spread the word to those who care! Even if this isn’t your specific problem, I think this question can provide some general lessons about how to deal with government laws and regulations that, on first reading, do not make sense.
The issue here is something called the “antideficiency act” (ADA), specifically the part of the ADA in 31 U.S.C. § 1342, Limitation on voluntary services. This statute says that, “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…”
Now at first glance, this text could appear to forbid OSS. Historically, OSS was developed by volunteers, and a lot of OSS is still created by people who aren’t paid to write it. A lot of OSS developers are paid to write software today, often at a premium, but that doesn’t help either. After all, often the government is not the one paying for the development, so at first glance this still sounds like “volunteer” work. After all, the company who is paying is still “volunteering” the software to the government!
In fact, it’s even worse. It appears to forbid the government from working with volunteer organizations like the Red Cross. In fact, it becomes hard to imagine how the government can work with various non-government organizations (NGOs) — most depend greatly on volunteers!
But as is often the case, if there’s a government law or regulation that doesn’t make sense, you should dig deeper to find out what it actually means. Often there are court cases or official guidance documents that explain things, and often you’ll find out that the law or regulation means something very different than you might expect. I’ve found that in the US government (or in law), the problems are often caused because a key term doesn’t mean what you might expect it to mean. In this case, the word “voluntary” does not mean what you might think it means.
The US Government Accountability Office (GAO) Office of the General Counsel’s “Principles of Federal Appropriations Law” (aka the “Red Book”) explains federal appropriation law. Volume II of its third edition, section 6.C.3, describes in detail this prohibition on voluntary services. Section 6.C.3.a notes that the voluntary services provision is not new; it first appeared, in almost identical form, back in 1884. The red book explains its purpose; since “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…”
The red book section 6.C.3.b states that in 1913, the Attorney General developed an opinion (30 Op. Att’y Gen. 51 (1913)) that “has become the leading case construing 31 U.S.C. § 1342… the Attorney General drew a distinction that the Comptroller of the Treasury thereafter adopted, and that GAO and the Justice Department continue to follow to this day: ”the distinction between ‘voluntary services’ and ‘gratuitous services.’” Some key text from this opinion, as identified by the red book, are: “[I]t seems plain that the words ‘voluntary service’ were not intended to be synonymous with ‘gratuitous service’ … it is evident that the evil at which Congress was aiming was not appointment or employment for authorized services without compensation, but the acceptance of unauthorized services not intended or agreed to be gratuitous and therefore likely to afford a basis for a future claim upon Congress… .” More recent decisions, such as the 1982 decision B-204326 by the U.S. Comptroller General, continue to confirm this distinction between “gratuitous” and “voluntary” service.
So here we have a word (“voluntary”) that has a very special meaning in these regulations that is different from its usual meaning. I expect that a lot of the problem is that this word dates from 1884; words their meaning change over time. And changing laws is hard; lawmakers rarely change a text just because it’s hard for ordinary people to understand.
In short, the ADA’s limitation on voluntary services does not broadly forbid the government from working with organizations and people who identify themselves as volunteers, including those who develop OSS. Instead, the ADA prohibits government employees from accepting services that are not intended or agreed to be given freely (gratuitous), but were instead rendered in the hope that Congress will subsequently recognize a moral obligation to pay for the benefits conferred. Services that are intended and agreed to be gratuitous do not conflict with this statute. In most cases, contributors to OSS projects intend for their contributions to be gratuitous, and provide them for all (not just for the Federal government), clearly distinguishing such OSS contributions from the “voluntary services” that the ADA was designed to prevent.
I’ve recorded this information on the MIL-OSS FAQ at http://mil-oss.org/learn-more/frequently-asked-questions-on-open-source-software-oss so that others can learn about this.
When you have questions about OSS and US federal government, good places for information/guidance include the following (the DoD-specific ones have information that may be useful elsewhere):
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