You may want to think twice before opening that social media account for your agency.
In an April 4 memo, the Office of Management and Budget put agencies on notice that employees may be in violation of the Antideficiency Act by agreeing to open-ended terms of agreement for certain websites. You’ve seen them, the lists of terms and conditions that most of us bother not to read.
The good news: If you don’t have contracting authority, then your consent on the government’s behalf isn’t binding. For contracting officials, however, that’s a different story.
The Antideficiency Act prohibits agencies from spending funds that have not been appropriated or from accepting voluntary services. Here’s what the Justice Department’s Office of Legal Counsel has to say on the social media/Antideficiency Act issue:
…in certain circumstances, a Federal employee with contracting authority violates the Antideficiency Act when he or she opens an agency account for a social media application that is governed by Terms of Service (TOS) that include an open-ended indemnification clause. An Antideficiency Act violation may occur in such a situation because an agency’s agreement to an open-ended indemnification clause could result in the agency’s legal liability for an amount in excess of the agency’s appropriation.
Apparently the issue is serious enough for OMB to call on the Federal Acquisition Regulatory Council to get involved:
OMB has requested that the Federal Acquisition Regulatory Council (FAR Council) undertake a rulemaking-through the issuance ofan interim rule-to amend the Federal Acquisition Regulation (FAR) to require contracting officers to put contractors on notice that any [terms of service], [end user license agreements] or other agreement requiring the government or government-authorized end user to indemnify the contractor for damages, costs, or fees incurred is unenforceable against the government or end-user and will be read out ofthe agreement to prevent violations of the Antideficiency Act.
To be on the safe side, here’s a list of amended terms of service agreements from the General Services Administration.
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