B-305368, Department of Education--Contract to Obtain Services of Armstrong Williams, September 30, 2005
The Honorable Frank R. Lautenberg
The Honorable Edward M. Kennedy
This responds to your letter of January 10, 2005, in which you asked
that we consider the Department of Education’s arrangements with Ketchum, Inc.,
and Mr. Armstrong Williams concerning the “No Child Left Behind” program. Your letter was prompted by some press
reports about a Department of Education contract with Ketchum, Inc., and
Ketchum subcontracts with the Graham Williams Group (GWG).
Among other things, the press reports allege that pursuant to these
arrangements, the Department paid Mr. Williams to promote the No Child
Left Behind Act of 2001, Pub. L. No. 107‑110, 115 Stat.
As explained below, we find that the Department contracted for Armstrong Williams to comment regularly on the No Child Left Behind Act without assuring that the Department’s role was disclosed to the targeted audiences. This violated the publicity or propaganda prohibition for fiscal year 2004 because it amounted to covert propaganda. As a result of this violation, the Department also violated the Antideficiency Act, 31 U.S.C. sect. 1341.
Consistent with our usual practice, we requested factual information and the Department’s legal justification for using appropriated funds to obtain the services provided by Mr. Williams and his company. Letter from Susan Poling, Managing Associate General Counsel, GAO, to Kent Talbert, Acting General Counsel, Department of Education, Jan. 28, 2005 (hereinafter, Poling Letter). The Department delayed its response to our request pending completion of work by the Inspector General (IG) on whether the Department’s arrangements with Ketchum and GWG complied with the Federal Acquisition Regulation and other pertinent contract law.
The IG issued his report on
The No Child Left Behind Act (NCLB Act) became law in January
2002. In order to disseminate
information to the public about the NCLB Act, the Department decided to acquire
media relations services. On
According to the IG report, Mr.
Williams initially approached the Secretary of Education in March 2003 with an
undated written proposal that the Graham
Williams Group (GWG) do some work for the Department.
The Department adopted the Ketchum proposal
The Statement of Work also set out a list of “Deliverables” that included two television ads and two radio ads “promoting NCLB,” to be broadcast during Armstrong Williams’s radio and television shows; an option for the Secretary and other Department officials to appear from time to time as studio guests to discuss the NCLB Act; a 6-month advertising campaign in “The Right Side” with Armstrong Williams, with “bonus ads” during Black History month and on Rev. Martin Luther King, Jr.’s Birthday; and a requirement that Mr. Williams “utilize his long term working relationship with America’s Black Forum, where he appears as a guest commentator, to encourage the producers to periodically address the No Child Left Behind Act (67 million viewers; reach 87% of urban market).”
The Statement of Work required Ketchum to provide monthly reports to
the Department. After the Department
issued Task Order No. 9 to Ketchum, Ketchum and GWG entered into a “firm-fixed
price subcontract,” effective retroactively from
Over the course of both task orders, GWG submitted to Ketchum a series of monthly invoices and reports. Ketchum passed these invoices and reports to the Department as part of its billing process.  Ketchum’s invoices included line items for its own administrative expenses, plus an additional line item indicating that it had paid GWG’s subsidiary, Right Side Productions, Inc., along with the date and amount. All of GWG’s invoices billed for “Professional Services.” Some of those invoices included a line item for “Ad production,” “Ad costs,” or “Ad Campaign.” The IG found that the invoices paid by the Department did not clearly identify what the Department was paying for. None of the invoices provided the Department by Ketchum or GWG specifically referred any of the “deliverables” listed in the Statements of Work.
GWG’s monthly reports were organized into two sections. Every report began with a list (often lengthy) of what GWG characterized as activities undertaken during that month in which “Mr. Armstrong Williams promoted NCLB.” The activities listed included radio and television shows, radio stations, networks, published columns, and other activities. Most of those entries for these activities consisted solely of dates and event names. Other entries were more detailed. For example, in the report for February 2004, GWG included in its list the entry, “Sinclair Broadcasting—February 16 & 23, 2004. Two (2) minute commentary devoted to NCLB.” The January report listed and reproduced in full a column that Mr. Williams had published “devoted to NCLB” that appeared in 34 newspapers. (Mr. Williams did not disclose in the column his contractual relationship to the Department.) The monthly reports also listed the dates, times, and stations on which the GWG-produced TV and radio advertisements ran during that month.
The IG found that, taken together, Mr. Williams’s 12 monthly reports listed “168 activities other than ads . . . promoting NCLB.” ED-OIG at 15. We asked the Department for copies or transcripts of all of the interviews, speeches, columns, and other public statements that Armstrong Williams made promoting the NCLB Act as result of its subcontracts with Ketchum. Other than the one column which GWG reproduced in full as part of its Monthly Report for January 2004, see Talbert Letter, Exhibit 29, the Department did not provide us with copies or transcripts for any of the activities listed in the monthly reports. For this reason, we searched the internet for copies, transcripts, or press reports of the other public statements that GWG listed in its monthly reports. We were unable to locate any of those statements on the internet, but we did find other columns that Mr. Williams made promoting the NCLB Act during the period covered by the Department’s task orders. However, we could not directly connect these other columns to Task Order Nos. 9 and 16 because, while the GWG and Ketchum proposals stated that Mr. Williams would “place stories and commentaries on NCLB” in the media, GWG did not list these other columns in its monthly reports.
The Department told us that it
has paid Ketchum a total of $188,543.48 for Task Order Nos. 9 and 16. Of that amount, $186,000 covered amounts that
Ketchum paid GWG. Talbert Letter at 9. The Department paid these amounts using funds
appropriated for “Departmental Management—Program Administration” in the
Consolidated Appropriations Act, 2004, Pub. L. No. 108-199, div. E, title III, 118
Stat. 3, 262 (
Your letter asked us to determine whether the Department’s arrangements
with Ketchum, GWG, and Armstrong Williams violated the governmentwide publicity
or propaganda prohibition, as contained in the 2004 fiscal year appropriations
act. This prohibition states that “[n]o part of
any appropriation . . . shall be used for
publicity or propaganda purposes within the
Violation of the Publicity or Propaganda Prohibition
In previous opinions and decisions, we have
found “materials . . .
prepared by an agency or its contractors at the behest of the agency and
circulated as the ostensible position of parties outside the agency” amount to
covert propaganda that violates the prohibition. B‑229257,
In this case, the Department directed Ketchum
to subcontract for Armstrong Williams to convey a message to the public on
behalf of the government without disclosing to the public that the messengers
were acting on the government’s behalf and in return for the payment of public
funds. The Statements of Work for both
task orders explicitly stipulated that “Ketchum shall arrange for Mr. Williams to regularly comment upon NCLB.” Talbert Letter, Exhibit Nos. 3 and 5. The Statements of Work also required
Mr. Williams to “utilize his long term working relationship with
The Department knew when it directed Ketchum to contract with GWG that Mr. Williams’s commentary and discussion under these Statements of Work would endorse the NCLB Act. Both Ketchum and Mr. Williams had stressed to the Department that he was willing to accept significantly less than he would normally charge for his services because “he believed in the NCLB.” ED-OIG Report at 6. See also Talbert Letter, Exhibits 1 and 4. In fact, as the IG noted, GWG specifically proposed to “win the battle for media space [through] favorable commentaries [that] will amount to passive endorsements from the media outlets that carry them.” ED‑OIG Report at 12 (quoting the GWG proposal presented to the Department in November 2003).
To meet the
requirements of the Statements of Work, Mr. Williams reported to the Department
on a monthly basis. In those reports he
listed the activities in which he had “promoted NCLB.” The IG counted in those monthly reports 168
separate activities in that effort, including speeches, interviews, appearances,
and a published newspaper column. The Department did not provide us recordings
or transcripts of those activities. We
only received the newspaper column from the Department because GWG reproduced
it in whole in one of its monthly reports.
In that newspaper column, Mr. Williams praised NCLB, the President,
and the Secretary of Education. We independently located on the internet
other activities promoting the NCLB Act that Mr. Williams undertook between
The IG did not
opine on whether the activities that it identified violated the prohibition on
publicity or propaganda. His review was limited to “determin[ing]
whether the initial award to Ketchum and the subsequent work requests involving
the GWG were in compliance with the Federal Acquisition Regulation (FAR) and
other pertinent contract law.” ED-OIG
Report at 1. The IG also evaluated the “effectiveness
of the oversight function” with respect to the Ketchum contract and the GWG
It is clear to us from the monthly reports and invoices provided by GWG that Mr. Williams promoted the NCLB Act at the behest of the Department and that he thought it was part of the contract. It is also clear that the Department did not ask Ketchum to ensure that the Department’s sponsorship of Mr. Williams’s activities in promotion of the NCLB Act was disclosed to his targeted audiences. The Department did not include in its contracts a requirement for Ketchum, and hence Mr. Williams, to disclose to intended audiences the fact that the Department had retained him to comment upon the NCLB Act. In the column promoting the NCLB Act that Mr. Williams reproduced in his monthly report for January 2004, Mr. Williams did not disclose the Department’s sponsorship role. As noted above, we asked the Department to provide us copies or transcripts of all of the activities that GWG listed in its monthly reports as “promotional” events, but the Department did not provide us with any of them—with the exception of the one column which GWG included in its January report. For this reason, we could not independently verify whether Mr. Williams made appropriate disclosures to his audiences and colleagues during the other activities listed in GWG’s monthly reports. Mr. Williams, however, has publicly acknowledged that he did not regularly, if at all, disclose to his audiences or the colleagues he was to influence that he had been hired at the Department’s request to promote the NCLB Act. For these reasons, we think it is clear that the Department violated the publicity or propaganda prohibition by using appropriated funds to arrange for commentary by Armstrong Williams on the NCLB Act without assuring that the Department’s role in sponsoring that commentary was disclosed to the targeted audiences.
The Department’s Position
In its reply to us, the Department did not dispute that Armstrong
Williams made favorable commentaries on the NCLB Act during the period covered
by Task Order Nos. 9 and 16. Nor did it
dispute that the Statements of Work in the Task Orders required Mr. Williams to
comment regularly on the NCLB Act. Instead,
the Department argued that it contracted only for television and radio
advertisements featuring Mr. Williams. Talbert Letter at 2. The Department offered three points in
support of its position: First, the only
portions of its Statements of Work that have any legal significance are the
lists of “deliverables.” The Department
argues that its task orders did not procure Mr. Williams’s commentary,
which meant there was nothing for the Department to disclose. Second, the Department did not pay any
appropriated funds for covert propaganda. Third, the Department’s task orders
represented the legitimate dissemination of information to the public.
The Department’s first point is that the only portions of its Statements of Work that have any legal significance are the lists of “deliverables.” Although the Department acknowledges that its Statements of Work contained language directing Ketchum to “arrange for Mr. Williams to regularly comment upon NCLB,” the Department stresses that this language was not in the lists of “deliverables” included in the Statements of Work. Talbert Letter at 4–5. The Department offers no explanation of the meaning or significance of the rest of the language contained in the Statements of Work, nor does it offer any precedent in support of its position.
We identified no case law supporting the Department’s position that
contractual obligations are limited to those enumerated as deliverables. On the contrary, the courts have long
recognized that a “cardinal principle of contract
construction [is] that a document should be read to give effect to all its
provisions and to render them consistent with each other.” Mastrobuono v. Shearson Lehman Hutton, Inc., 514
The case law and the Department’s own directives compel us to conclude that the language in the statements of work of these task orders may not be casually read out of the contract. Accordingly, we reject the Department’s suggestion that we ignore the explicit language from the Statements of Work that “Ketchum shall arrange for Mr. Williams to regularly comment on NCLB.” This passage was not rendered nugatory simply because the Department did not replicate it in its list of deliverables. To determine the “scope” of the Department’s arrangements with Ketchum and GWG and the “specific work to be accomplished” under them, we must construe all of the language of the Statements of Work. 48 C.F.R. sect. 37.602-1(a).
Having concluded that the Department’s contract may not be restricted
to the lists of deliverables, we think the Department’s task orders did procure
commentary from Mr. Williams. “It is
widely accepted that the plain language of a contract, if unambiguous, is the
best source to use to interpret it.”
The Department’s second argument is that it did not pay any appropriated funs for covert propaganda because none of the invoices reference commentary by Mr. Williams. The problem with this argument is that none of the invoices actually identified any specific deliverable listed in the statements of work. Instead, GWG billed for “Professional Services.” Some of the invoices mention “ad production,” “ad costs,” or “ad campaign,” but the language used in the invoices is not sufficient to identify a specific deliverable under Task Order Nos. 9 and 16, such as one of the television or radio ads. The Statements of Work do not specify unit prices for anything in the task orders that could serve as a basis to separately bill for the performance of a particular deliverable. Each task order is a firm, fixed price contract for everything in the task order.
The invoice reference to “Professional Services” is to a package of products and services, including commentary that GWG had bundled together and offered to the Department at a reduced price. The record shows that the proposals Ketchum and GWG made and the Department adopted featured a complete package of services, including both ads and favorable commentary in the media, at a reduced cost. GWG and Ketchum recommended an “integrated marketing campaign” to target audiences through a variety of mediums, including commentary by Mr. Williams in other forums he frequently appeared. Talbert Letter, Exhibit 4. Ketchum had noted to the Department that the typical fee for this level of services would be far greater than the amount that the Department agreed to pay under the task orders. Talbert Letter, Exhibit Nos. 1, 4. In its proposals to the Department, which eventually became the statements of work, GWG had offered to provide all of the services as a package at a reduced fee. In light of the vague billing, the monthly reports itemizing the number of times Mr. Williams promoted the NCLB Act, and the inclusive packages of services included in the proposals and statements of work, when GWG billed the Department for “Professional Services,” these services included the commentary that Mr. Williams reported in his monthly reports.
The Department’s third argument is that these task orders are no more
than the legitimate dissemination of information to the public. In its view, the subcontracts to obtain the
services of Mr. Williams and GWG represented “a concerted effort . . . to
inform the public and parents about NCLB and the opportunities it offers to them
and their children.” Talbert Letter at
6. Every agency
has a legitimate interest in the “dissemination to
the general public, or to particular inquirers, of information reasonably
necessary to the proper administration of the laws” for which the agency is
responsible. 31 Comp. Gen. 311
(1952). See also, e.g., B-303495,
Antideficiency Act Violation
The Department’s use of appropriated funds
in violation of the publicity or propaganda prohibition also constituted a
violation of the Antideficiency Act, 31 U.S.C. sect. 1341(a). This act prohibits making or authorizing an
expenditure or obligation that exceeds available budget authority. B-300325,
The Department of Education violated
the fiscal year 2004 publicity or propaganda prohibition by contracting with
Ketchum for the services of GWG to obtain commentary by Armstrong Williams on
the NCLB Act without requiring Ketchum to ensure that Mr. Williams disclosed to
his audiences the Department’s role. The
commentary obtained as a result of these contracts violated the publicity or
propaganda prohibition because it was “covert,” in that it did not disclose to
the targeted audiences that it was sponsored by the Department and was paid for
using appropriated funds. E.g., B-303495,
If you have any questions regarding this matter, please contact Susan A. Poling, Managing Associate General Counsel, at 202-512-2667, or Thomas H. Armstrong, Assistant General Counsel, at 202-512-8257.
Anthony H. Gamboa
- The Department of Education contracted
to obtain commentary on the No Child Left Behind Act by Mr. Armstrong
Williams, but took no steps to assure that its role in sponsoring that
commentary was disclosed to the targeted audiences. This constituted covert propaganda in
violation of the fiscal year 2004 publicity or propaganda prohibition
found in the Consolidated
Appropriations Act, 2004, Pub. L. No. 108-199, div. F, title VI,
sect. 624, 118 Stat. 3, 356 (
Jan. 23, 2004).
- Because the Department of Education had no appropriations available to
contract for covert propaganda in violation of the publicity or propaganda
prohibitions found in Consolidated Appropriations Act, 2004,
Pub. L. No. 108‑199, div. F, title VI, sect. 624,
118 Stat. 3, 356 (
Jan. 23, 2004), the Department also violated the Antideficiency Act, 31 U.S.C. sect. 1341. It must report these violations to the Congress and the President, and transmit a copy of that report to this Office. 31 U.S.C. sect. 1351, as amended.
 Consolidated Appropriations Act, 2004,
Pub. L. No. 108-199, div. F, title VI, sect. 624, 118 Stat. 3, 356 (
 Mr. Williams is a syndicated columnist
and commentator. He
founded and heads GWG, which
represents Mr. Williams and owns and produces the shows that he hosts. See
Armstrong Williams, About
Armstrong—The Graham Williams Group, at http://www.armstrongwilliams.com (last visited
 The Department’s Statement of Work “mirrored
the Ketchum proposal,” see ED‑OIG
Report at 7, which was, in turn, based on the GWG proposal “with limited
Letter, Exhibit 3: Contract No. ED-03-PO-1725, Amendment of
Solicitation/ Modification of Contract No. 7,
 The Right Side is a radio and television show hosted by Armstrong Williams.
 Talbert Letter, Exhibit 4: Memorandum re: “Response to Statement of Work #16,” from “Ketchum” to Janet D. Scott, Contracting Officer, Department of Education, May 18, 2004.
 See Talbert Letter, Exhibit 5: Contract No. ED-03-PO-1725, Amendment of
Solicitation/Modification of Contract No. 20,
 ED-OIG Report at 7.
 See Talbert Letter, Exhibits 28-40.
 Talbert Letter at 4, nn.6, 8; ED-OIG Report at 15.
 In a letter to the Federal Communications Commission (FCC) which the Department submitted to us, Ketchum said, “GWG produced invoices detailing run times and locations for the ads, which Ketchum forwarded to the government for payment.” Talbert Letter, Exhibit 47. GWG’s monthly reports itemized the run times and locations for the ads, but the GWG invoices did not.
The FCC is
presently conducting an ongoing investigation into whether any laws under its
jurisdiction were violated as a result of actions taken in this matter. See
FCC Press Release dated
 Talbert Letter, Exhibits 7-14.
 Talbert Letter, Exhibits 15-26.
 E.g., Talbert Letter, Exhibit 15.
 E.g., Talbert Letter, Exhibit 16.
 E.g., Talbert Letter, Exhibit 22.
 ED-OIG Report at 15.
 E.g., Talbert Letter, Exhibit 29 (Minority Outreach Campaign, Task Order No. 9, Monthly Report for January 2004).
 Talbert Letter, Exhibit 30.
 Talbert Letter, Exhibit 29.
 Talbert Letter, Exhibits 28-40.
 Poling Letter.
Our research revealed several other
columns that Mr. Williams published on the NCLB Act during this period
which were not mentioned in the monthly reports. See,
e.g., Townhall.com, The Education Costa Nostra, originally at http://www.Townhall. com/columnists/ArmstrongWilliams/printaw20040301.shtml
 Talbert Letter, Exhibits 1, 4; ED-OIG Report at 7, 12.
 The Department has already agreed to the IG’s recommendation that it recover some of these amounts. ED-OIG Report at 19; ED-OIG Report, Attachment 1 at 6.
 Pub. L. No. 108-199, div. F, title VI, sect. 624, 118 Stat. at 356.
 The Department’s Statements of Work do not
mention the use of published columns or other media. However, the IG reported that “there were
numerous indicators during the formation process that the GWG work under the
work requests could include providing or attempting to arrange favorable NCLB
commentary though various media outlets.”
ED-OIG Report at 11. For example,
the GWG and Ketchum proposals stated that Ketchum and Mr. Williams would
“work with African-American newspapers to place stories and commentary on
NCLB.” Talbert Letter, Exhibit 1: Memorandum
from Monica Marshall, Senior Vice President, Ketchum, to John Gibbons, Director
of Public Affairs, and D.J. Nordquist, Deputy Director of Public Affairs,
Department of Education,
More importantly, GWG’s monthly reports identifying its activities in performance of the task orders explicitly notified Ketchum and the Department that Mr. Williams was publishing columns and using other media outlets to “promote” NCLB in order to satisfy his obligations under the contract.
Paige and Mayor Williams fight for change, at http://www.townhall.com/columnists/ArmstrongWilliams/aw20040107.shtml
“President Bush’s No Child Left Behind Act was designed to redress th[e] ‘soft bigotry of expectations’ [i.e., that ‘many teachers believe that poor students—mostly of color—cannot really do much better’ in school]. . . .
“[Secretary] Paige has long been at the forefront of the movement to increase educational options for underprivileged students. . . .
. . .
“Providing children with a decent education is something we can do to haul our society along. We may not be able to end all inequality; but we can, as individuals, demand that our underprivileged children have options when it comes to the greatest single instrument of empowerment—education. This is a rather straightforward goal of men like Secretary Paige . . . And it is the next great battleground in the fight for social equality.”
 Recently, the IG published another report
reviewing 15 grants and 20 contracts that the Department awarded for public
relations services during fiscal years 2002–2004, but did not include the
contract and subcontracts at issue here.
ED-OIG Report No. ED-OIG/113-F0012, September 2005 at 1. This report did consider whether the
Department had violated the prohibition on publicity or propaganda in the 15 grants
and 20 contracts that it reviewed.
Paige and Mayor Williams fight for change, at http://www.townhall.com/columnists/ArmstrongWilliams/aw20040107.shtml
 As noted above, we found on the Internet several other columns that Mr. Williams published on the NCLB Act between December 2003 and January 2005, the period covered by these task orders, but he did not list these in his monthly reports. These columns did not disclose that the Department had retained Mr. Williams to comment on the NCLB Act.
 See Media Matters for
 To the extent that the Department maintains that the advertisements were the main deliverables under Task Order Nos. 9 and 16, the IG found that the Department “only received two of the eight ads it was supposed to receive under both work requests,” yet it paid the full invoiced prices anyway. ED‑OIG at 16.
We reviewed the GWG-produced television and radio ads that the Department provided to us. We found that those ads did not violate the prohibition on publicity or propaganda. They clearly disclosed to the target audiences that the Department had paid for them.
 As noted above, each list of “Deliverables” specified two television ads and two radio ads promoting the NCLB Act ; an option for the Secretary and other Department officials to appear from time to time as studio guests to discuss the NCLB Act; a 6-month advertising campaign in The Right Side with Armstrong Williams, with bonus ads during Black History month and on Rev. Martin Luther King, Jr.’s Birthday; and a requirement that Mr. Williams utilize his influence with America’s Black Forum to encourage the producers to periodically address the NCLB Act.
 We also note that the FAR, which does not require deliverables, does require that the statement of work define the requirements and specific work to be accomplished. See, e.g., 48 C.F.R. sections 37.602-1(a), 16.504(a).
 Departmental Directive No. OCFO:2-107, Acquisition Planning, sect. VII.G.1.b(3) at 12 (
 48 C.F.R. sect. 37.602‑1(a).
 See Talbert Letter, Exhibits 7-26; ED-OIG Report at 15.
 Mr. Williams told the IG that “the cost associated with the level of services he provided was well below what he would normally charge. Because he believed in NCLB, and wanted the business, [he] agreed to perform for the cost the Department was willing to pay.” ED-OIG Report at 6.
 Although the ED IG’s investigation was focused on contract formation and oversight issues, the Inspector General did conclude that the Department paid for ads that were never received (ED-OIG Report at 15-16) and the ads that were received were of poor quality. ED-OIG Report at 16, 18. In addition, because commentary was included in the Statements of Work and the activity reports, the Inspector General concluded that the Department “may have been paying for more than just the advertising.” ED-OIG Report at 18.
 We note in passing that in each of his monthly reports, Mr. Williams claimed to be “promoting” the NCLB Act, not educating the public. The column reproduced in the monthly report for January 2004 is the only sample provided of those activities. It discussed the political controversy surrounding the NCLB Act and the character, roles, and motives of the Department, the Secretary, the President, and various other interested parties with respect to the enactment and implementation of the NCLB Act.
amendments to 31 U.S.C. sect. 1351 require the Department to transmit a copy of
that report to the Comptroller General.
31 U.S.C. sect. 1351, as amended by Consolidated Appropriations Act, 2005,
Pub. L. No. 108-447, div. G, title I, sect. 1401, 118 Stat. 2809, 3192 (
Office of Management and Budget Circular No. A-11 provides guidance on what information to include in Antideficiency Act reports. Agencies must report violations found by GAO, even if they disagree with the finding. OMB advises agencies, “If the agency does not agree that a violation has occurred, the report to the President and the Congress will explain the agency’s position.” OMB Circ. No. A‑11, para. 145.8 (July 2004).