Are statutory trust funds considered appropriated funds (see Vol. IV., Chap. 17, para. 3.b.(3) of Principles of Federal Appropriations Law)?

Also, what are the major differences of contracts awarded using federal appropriated funds and those using federal non-appropriated funds?

By Vern Edwards on Monday, April 22, 2002 - 11:15 am:

I don't know the answer to your first question.

In answer to your second question, the most significant differences between government contracts awarded using appropriated funds and those using non-appropriated funds are that (1) the Federal Acquisition Regulation (FAR) does not apply to the award or administration of contracts paid for with non-appropriated funds (although many government organizations that use non-appropriated funds choose to follow the FAR, more or less), and (2) the principles of federal appropriations law do not apply to non-appropriated funds.

By joel hoffman on Monday, April 22, 2002 - 12:17 pm:

For Army NAF projects, NAF is subject to AR 215-4. You might also look at DODI 4105.67, if you are within DOD.

Some other distinctions (for Army NAF, at least):

The contract is signed with a Non-Appropriated Fund Instrumentality "NAFI", as the contracting party - not the "US Government."

Contract Disputes Act is not applicable.

Protests are handled differently, depending upon the awarding agency.

Competiton in Contracting Act is not applicable.

Synopsis in FedBiz Ops isn't required (at least not required for CBD, so I assume similar for the new system)

NAF funds have different fiscal constraints than appropriated funds.

Procurement Integrity Act is not applicable.

Small Business Act is not applicable nor are 8(a) and set-asides.

NAF has its own contract forms.

Contract clauses are different than the FAR clauses.

Prompt Payment Act is applicable, although different procedures are used.

The above info is several years old, and might have been updated in the meantime. happy sails! joel

By cmercy on Monday, April 22, 2002 - 01:31 pm:

You may also wish to review the paper released by GAO JAN 2001 'FEDERAL TRUST AND OTHER EARMARKED FUNDS" FAQ.

By formerfed on Monday, April 22, 2002 - 02:49 pm:

You'll need to do research on the specific trust fund involved. Note the comment in the Red Book cite you mentioned that "the Comptroller General will treat them more like a direct appropriation". If there's a protest on non-appropriated fund activities, GAO looks at the nature of the fund, how Congress established it, what the intent was in setting it up, and how spending gets authorized. Even thoough it might be called Trust Funds, if it has the characteristics of the appropriation process GAO often considers it as such.

By Anonymous on Monday, April 22, 2002 - 03:50 pm:

Thanks all.

By Anonymous on Tuesday, April 23, 2002 - 10:59 am:

Further to chain on differences between Af & NAF contracting:

Service Contract Act and Davis-Bacon DO apply to NAF

There are no administrative forums with jurisdiction to hear protests; i.e., GAO, ASBCA, etc. will not rule on NAF protests (except, possibly, on the limited issue of whether an NAF procurement should have been an AF procurement). Contractor protest/appeal avenues are only agency level or the courts.