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I have FY10 RDT&E funding for a service contract that we are trying to award on 28 September. This contract is considered severable. My question is; am I allowed to use this funding. The reason I ask is because the FAR addresses annual funding can be used across FYs but RDT&E is not Annual funding and the funds that I have are about to expire 1 Oct 2011. I'm not sure if I can obligate this multi year funding across FYs. Any help would be greatly appreciated.

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Guest Vern Edwards

See GAO's 2009 letter to the Senate Committee for Homeland Security and Governmental Affairs, Severable Service Contracts, B-317636, April 21, 2009, 2009 CPD ? 89:

This responds to your request for our legal opinion on whether 10 U.S.C. sect. 2410a and 41 U.S.C. sect. 253l restrict a federal agency using multiple year or no-year appropriations to contracts for periods of performance no longer than 1 year. Both of these provisions permit agencies to enter into severable services contracts that cross fiscal years for up to 1 year and obligate the appropriations current at the time the agencies enter into the contract. In our opinion, these statutory provisions do not restrict to 1 year the contract periods of severable services contracts funded by no-year appropriations or by multiple year appropriations.

* * *

While a multiple year appropriation is available for a definite period of time, it is available by its very terms for the bona fide needs of the agency arising during that multiple year period. As stated above, severable services are considered a bona fide need of the appropriation current at the time rendered. Consequently, an agency using a multiple year appropriation would not violate the bona fide needs rule if it enters into a severable services contract for more than 1 year as long as the period of contract performance does not exceed the period of availability of the multiple year appropriation.

Thus, as long as the period of performance of your severable services contract does not exceed the period of time for which the funds were available for obligation, you are good to go for a severable services contract that crosses fiscal years.

If you want to read the entire GAO letter, Google <GAO B-317637>.

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See GAO's 2009 letter to the Senate Committee for Homeland Security and Governmental Affairs, Severable Service Contracts, B-317636, April 21, 2009, 2009 CPD ? 89:

Thus, as long as the period of performance of your severable services contract does not exceed the period of time for which the funds were available for obligation, you are good to go for a severable services contract that crosses fiscal years.

If you want to read the entire GAO letter, Google <GAO B-317637>.

Since my FY10 RDT&E expires 1 October this year it looks like i will not be able to use this funding because the POP is 28 Sept 11 to 27 Sept 12. Thanks

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Guest Vern Edwards

Sigh. You don't get it. As long as the period of performance (one year) does not exceed the period of fund availability (2 years) you are good to go. One year is less than two years, so you can use the money. Get it?

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Sigh. You don't get it. As long as the period of performance (one year) does not exceed the period of fund availability (2 years) you are good to go. One year is less than two years, so you can use the money. Get it?

Yes I get it, the problem is as I mentioned in my first post these funds are FY10 so they expire FY12 which is this Saturday so these funds will not be valid to put oncontract as the availibility period will have expired.

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Guest Vern Edwards

If you have a bona fide need of FY 2010 or 2011, and if you can obligate the money by Saturday, then you can award a contract with a performance period that does not exceed two years. However, given the nature of your requirement, I doubt that it is a bona fide need of 2010 or 2011.

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If you have a bona fide need of FY 2010 or 2011, and if you can obligate the money by Saturday, then you can award a contract with a performance period that does not exceed two years. However, given the nature of your requirement, I doubt that it is a bona fide need of 2010 or 2011.

I believe the 2009 GAO letter (B-317636) stands for two propositions: 1) that neither 10 USC ?2410a or 41 USC ?253l limit agencies with no-year or multiple-year funds to a severable service performance period of one year; and 2) that the maximum period of performance for contracted severable services funded by other than annual appropriations is the period (actual start/end dates ? not number of years) of availability for obligation associated with those funds.

By indicating that the cited statutes don?t apply to no-year or multiple-year funds, the GAO is suggesting traditional bona fide needs analysis which would treat as a bona fide need only those services performed while the funds were available for obligation. This limits the period of performance to a date no later than the end of the availability of those funds for obligation. In the case of no-year funds, arguably your contract could run indefinitely. In the case of the original poster?s FY 10 RDT&E funds I believe the poster is correct and September 30, 2011 is the outward bound on the performance period.

Nothing in the GAO letter suggests that there?s authority separate from the cited statutes (which GAO concludes don?t apply to no-year or multiple-year funds) to fund performance of severable service for a period beyond their availability for appropriation.

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Guest Vern Edwards

Yes, you are correct. I was wrong. The funds cannot be used for severable services beyond the period of fund availability. Dumb mistake on my part. I should have known better. Thanks.

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