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Troy64

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  1. The base period of the contract (to be awarded in September) is 12 months, of which only 2 months were to be funded with FY16 funds, the other 10 with FY17 (Not yet appropriated in September). That is obligating the government for 12 months with only two months of available funding and 10 months of funds not yet appropriated - how is that *NOT* obligating the government in advance of appropriations? The agency's argument is that 52.232-18 (Not DFARS 252.232-7007, yes I know about it, Matthew) allows us to terminate the contract in the unlikely event that funds are not appropriated prior to expiration of the funded portion. I completely disagree with that assertion, however, just for argument's sake, let's say that's true. The hole in that logic is that action is required to prevent an ADA violation. If, for whatever reason, administration of that contract slips through the cracks, and they do, then it absolutely is an ADA violation on the first day of performance when no funding is available (it's actually a violation upon release of the contract). Yes, 252.232-7007 requires the contractor to notify the KO when funding is about to run out, but I've yet to see one do so. The surest way to avoid this situation is to not write a contract for services beyond available funding to begin with. We do not create a situation in which, through inaction, an ADA violation would/could occur. We're not even supposed to release a solicitation unless it is either funded or we have a statement that funds are available, per AFARS 5132.702 (yes, I work for the Army). In FY16, no one can certify that FY17 O&M funds are available. If we can't even solicit, how can we award?
  2. By the way, incremental funding is not the issue - obligating the government in advance of appropriations is.
  3. I and other KOs that I've consulted with. Believe me, if I were alone in this thinking, we wouldn't even be having this conversation. Even senior legal counsel has conceded that I have a valid concern and admitted that this issue has come up multiple times over the years (I just learned that factoid recently). As I stated before, there is a whole lot more to this story. I mistakenly thought I could boil this down to its basic components and get a response to what I and others think is a pretty clear cut issue. My apologies.
  4. The push back was both of those; the RA wanted it a certain way AND it's the way they've done it in the past. Actually, I misspoke: I did not advocate for an option from 1 Nov 16 to 31 Aug 17 because we would wind up having this same debate each year when we exercise the options. My first preference was/is full funding and the only other alternative a shortened base period that matched available funding and full year options. I have to disagree with the assessment that there would be nothing to worry about as far as the ADA. I read another discussion in which the consequences of violating the ADA were mocked ("Who's Afraid of the ADA?"). While it *MAY* be true that in most cases that all anyone might receive is slap on the wrist (Letter of Concern), the potential is still there should, for any reason, someone want to do worse. Removal for unintentional violation, $5K in fines or 2 years in prison for willfully doing so - I'm not the gambling sort when it comes to my ability to move freely among the general population. And for what? So the RA can have a full five-year contract instead of four and some change?
  5. There's a lot more to this story, I just wanted to convey the basics and not make this too long-winded, but yes, that is one course of action for which I advocated. I got a lot of push back.
  6. Our agency has a long-standing policy of allowing incremental funding across fiscal years. As an anecdote, we had this one requirement for chaplain services that began 1 Sep 16, ends 31 Aug 17, and the RA only wanted to provide 2 months of FY16 OMA funds, intending to fund the other 10 months with FY17. Am I crazy, or doesn’t this violate the ADA by obligating the government in advance of funding? As the KO, I pushed back, requesting full funding or a change to the base period to match available funding. The RA was not pleased, nor was our management. We’ve been going back and forth for months and still are, prompting the RA to provide the full funding to ensure award by 30 Sep 16. But the fight is still on; management won’t rescind this policy, stating that we have to help the RA with their budget difficulties. Agency regulation requires management to report even *suspected* cases of ADA violations to HQ, but they won’t. I’ve bounced this off of other KOs for a reality check; they all agree that it is an ADA violation. As fish don’t know they’re wet, do we not know we’re wrong? Our legal counsel cites FAR clause 52.232-18 as authority; we disagree. Who’s right?
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