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I'll tell you what path I would take. I would obey the law, and I wouldn't apologize for it. If the commanders of those troops let it come to that, they are the ones who should answer for it. It's up to commanders to feed their troops, not some 1102 who thinks he or she ought to break the law in order to play hero. If you want to be a hero, see if you can get into Seal Team 6. If I were a chief of a contracting office and a CO took it upon himself or herself to deliberately violate the ADA, I would hang his or her ass out in the hot sun out to dry.

In any case, that's a totally BS scenario and dwgerard ought to be ashamed of himself for coming up with it.

BS? If it were completely impossible, then why did they add 50.101-1 to the FAR? I agree it is unlikely, perhaps in the extreme, but not impossible. Yes, we could stop all the contractors for working, but we still would need the food to be delivered, and in that unlikely probability, we would need a mechanism to obtain the supplies without having the funding available to pay for it. It has only been a bit over a hundred years since we were in that situation in the Civil War. In my opinion it is more unreasonable for a person to believe those extremes cannot happen again than it would be to me to believe they could.

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BS? If it were completely impossible, then why did they add 50.101-1 to the FAR? I agree it is unlikely, perhaps in the extreme, but not impossible. Yes, we could stop all the contractors for working, but we still would need the food to be delivered, and in that unlikely probability, we would need a mechanism to obtain the supplies without having the funding available to pay for it. It has only been a bit over a hundred years since we were in that situation in the Civil War. In my opinion it is more unreasonable for a person to believe those extremes cannot happen again than it would be to me to believe they could.

If it comes to that, you will receive a properly executed order, with proper delegations. It won't originate at the Garrison level.

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dwgerald,

There are two situations where money isn't available - Congress hasn't appropriated it or they have and the money hasn't worked its way down to your contract. You mentioned the later in your comment of

This case does not seem to be that stark, and I bet the garrison has the funding available and is simply withholding it for some reason. I am working on some contracts that are in that situation right now

Your job as the CO is to alert your management when it looks like money is running out. Let them know the repercussions - troops won't get fed until that happen. You will get their attention. If you keep trying to fix things improperly, you not only will get yourself in trouble with such things as an ADA violation, you'll bring lots of criticism and attention to your agency. Congress, GAO, IG and others will look at what happened and why. Your senior management will want to find who was responsible and the fingers point at you.

The right action is to notify management and let them make things right - not you breaking the rules. FAR 50-101 isn't for fixing problems due to administratively slack procedures in funding rountine contract actions.

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Guest Vern Edwards
"without regard to other provisions of law" = a provision allowing contracting without adhering to the ADA and other laws and regulations such as appropriation law.

dw:

You are wrong. You need to be more careful with your FAR research. FAR 50.101-1, which implements Pub. L. 85-804, does not authorize the president to enter into contracts without funds. See FAR 50.102-3, "Limitations on exercise of authority," paragraph (B)(3):

(B) No contract, amendment, or modification shall be made under Pub. L. 85-804?s authority?

(3) Except within the limits of the amounts appropriated and the statutory contract authorization... .

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dwgerald,

There are two situations where money isn't available - Congress hasn't appropriated it or they have and the money hasn't worked its way down to your contract. You mentioned the later in your comment of

Your job as the CO is to alert your management when it looks like money is running out. Let them know the repercussions - troops won't get fed until that happen. You will get their attention. If you keep trying to fix things improperly, you not only will get yourself in trouble with such things as an ADA violation, you'll bring lots of criticism and attention to your agency. Congress, GAO, IG and others will look at what happened and why. Your senior management will want to find who was responsible and the fingers point at you.

The right action is to notify management and let them make things right - not you breaking the rules. FAR 50-101 isn't for fixing problems due to administratively slack procedures in funding rountine contract actions.

I complete agree with what you say and I have done exactly this in my current job a number of times over the last year. In my case, I have actually prepared the stop work notice and sent a preliminary copy to the funding agency which prompted them to send the funding within 2 hours in a few cases and by the next day in all the rest.

The problem will come when we have a function that cannot be stopped, such as sanitary services, non-optional provisioning and the like. If the garrison or perhaps even the agency itself does not have the funding to pay for those supplies or services, what mechanism do we have to continue those services or to obtain those required supplies? When I say we I mean everyone, not just contracting.

The crux of the question is not when the funding is available and the funding agency is simply stingy or unwilling to fund the activity. The problem I am concerned about is when Congress has not appropriated the funding or has not appropriated enough to cover all of the requirements that includes a non-optional supply or service. In that case there is no funding available to the agency.

In essence, what do we do when the "do more with less" is impossible, and we are faced with a day in August of 20XX when the account reaches zero and we still have 100,000 troops to feed? Is there a way to deal with that other than to demand funding from Congress or another agency? Is there a way legally that the supplies or services could be obtained with a promissory note of some sort and not actuall funding?

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dw:

You are wrong. You need to be more careful with your FAR research. FAR 50.101-1, which implements Pub. L. 85-804, does not authorize the president to enter into contracts without funds. See FAR 50.102-3, "Limitations on exercise of authority," paragraph (B)(3):

Thanks for the correction Vern, but that leaves the original question unanswered; what mechanism do we or anyone else in the acquisition system have to obtain non-optional supplies or services in the event that funding is not available to the ordering agency? Do we just send out a foraging party, confiscate private supplies or do we release the troops and tell them they are on their own?

I realize this is not a likely scenario, but it is possible. It is happening in some countries today, and has happened in our past. It CAN happen again, so I think it wise for us to know if there is a means of obtaining the required supplies or services without descending into anarchy. Perhaps there is no answer to that question and anarchy will be the result. I hope not, because anarchy is much more difficult to recover from than would be a temporary and defined relaxation of the appropriation laws.

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Guest Vern Edwards
Thanks for the correction Vern, but that leaves the original question unanswered; what mechanism do we or anyone else in the acquisition system have to obtain non-optional supplies or services in the event that funding is not available to the ordering agency? Do we just send out a foraging party, confiscate private supplies or do we release the troops and tell them they are on their own?

You have no mechanism, dammit! No funds, no contracts. Anarchy is when people refuse to obey the law.

We have a constitution. Government employees are sworn to support and defend it. Remember your oath:

I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

Did you not mean it? Under the Constitution of the United States, only Congress can appropriate funds. Under the laws enacted by Congress, COs can buy things only when they have money. What is it about that that you do not understand and cannot accept?

COs make and administer contracts. What kind of "contract" would it be to sign a document in order to entice a firm to provide supplies or services when you have no power to do so and no money to pay?

COs do not feed troops. Troop commanders feed troops. COs help with that by awarding contracts with appropriated funds. No funds, no contracts. Period. End of story. Game over. Send out the foraging parties.

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That's not a decision for a CO to make, simply because a CO doesn't have the authority to violate the ADA. A CO's actions are limited by FAR 1.602-1(B), which states:

A CO acting outside the scope of their authority can be held personally liable for their actions. A CO has no more authority than the garrison janitors to violate the ADA. If there's no funding in place, that's not the CO's fault. The problem of the hungry troops should be laid at the feet of those with the authority to do something about it. A CO who thinks that it's his or her call to knowingly violate the ADA is beyond stupid.

I agree with Don. And, the troops will not starve to death. The Garrison commander will be forced to explain his ineptitude in securing the proper funding and for putting the CO in the position in the first place. These problems persist, because CO's are stepping around the rules to accomplish the mission. Well mission accomplishment is not part of the oath, obeying the law is. There are far more people in prison, or who have forfieted their carreers because the held mission accomplishment above the law, nothin is above the law.... not even the mission, nor the officer's OER!

Moreover, when it comedown to it, these people will leave the CO out in the cold so fast it will make your head spin...

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Guest Vern Edwards

I was personally involved in a case in which three government employees were financially ruined because they broke the law in order to get an approved project done with end of fiscal year funds. They also talked a contractor into going along with them. The contractor was suspended and eventually went bankrupt. The project was approved and funded, but they did some lying in order to get the work done under the cover of a contract that was for other work. Their families were under a terrific strain for a number of years. I was hired to explain to a U.S. attorney that they were stupid, but not criminally-minded. He did not believe me. The U.S. attorney eventually decided not to charge the men, but the investigation required that all parties hire expensive attorneys to represent and defend them.

Support the mission, but don't break the law to do it.

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I was personally involved in a case in which three government employees were financially ruined because they broke the law in order to get an approved project done with end of fiscal year funds. They also talked a contractor into going along with them. The contractor was suspended and eventually went bankrupt. The project was approved and funded, but they did some lying in order to get the work done under the cover of a contract that was for other work. Their families were under a terrific strain for a number of years. I was hired to explain to a U.S. attorney that they were stupid, but not criminally-minded. He did not believe me. The U.S. attorney eventually decided not to charge the men, but the investigation required that all parties hire expensive attorneys to represent and defend them.

Support the mission, but don't break the law to do it.

Thank you for sharing Vern...I apreciate the support.

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Thank you for sharing Vern...I apreciate the support.

In case you don't know - if the government decides to pursue criminal charges against a government employee, it will not provide legal representation for the employee, even if they were acting within the scope of their employment. And one doesn't even have to have knowingly or willingly violate the law.

I am aware of 2 high level civilian employees who experienced this, were convicted of felony violations of the Resource Conservation and Recovery Act (RCRA), fined and either put on probation or spent time in prison (I don't recall the specific consequences).

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