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Greetings I have a situation where I awarded a contract under FAR Part 8 Ability One contractor for commodities on September 31st with expiring funds meaning the funds needed to be obligated by 31 September. The winning vendor just informed me that they cannot procure those items through Ability One, my issue is if I cancel this contract then I will lose all the funding because this funding has expired, is there any other options I have to use so I do not lose this funding? Anyone been in this situation before? I know the FAR allows for an extension of funds when a protest is received but what if the vendor cannot perform after award, is there any provisions that will allow me to reuse this expired funding?

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15 minutes ago, duke38 said:

Greetings I have a situation where I awarded a contract under FAR Part 8 Ability One contractor for commodities on September 31st with expiring funds meaning the funds needed to be obligated by 31 September.

I avoid Sep 31 actions … :mellow:

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Seems like there could be a couple of issues here. Bonafide needs rule for supplies ordered in one year to be used in the next FY. In reading the JAG School discussion of Bonafide Needs rule for supplies, and assuming that an exception to the general rule applies, are the commodities on the Ability One Procurement List?

Assuming yes, there are procedures under FAR 8.7 to obtain waivers or exceptions to be able to purchase the commodities  from other commercial sources. Do you have to cancel the order from the vendor or can the vendor obtain the commodities elsewhere?

Seems like it would be important to consider the reasons why the vendor can't fulfill the order.  

 

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5 minutes ago, joel hoffman said:

Seems like there could be a couple of issues here. Bonafide needs rule for supplies ordered in one year to be used in the next FY. Assuming that an exception applies, are the commodities on the Ability One Procurement List?

Assuming yes, there are procedures under FAR 8.to obtain waivers or exceptions to be able to purchase the commodities  from other commercial sources. Do you have to cancel the order from the vendor or can the vendor obtain the commodities elsewhere? 

 

I don't want to cancel the order because i'm afraid i will lose the funding once I deob the order. The vendor can procure from other sources but I'm thinking Ability One may have an issue with the vendor procuring outside of Ability One when this contract was set-aside for Ability One products. If there is an exception in the FAR I can reference then I will move forward with allowing the vendor to procure from other sources.

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Assuming the items are not available from a higher priority mandatory source (FAR 8.002), and the products are available through the AbilityOne program and no exception applies (FAR 8.706), they must be procured from the central nonprofit agency or its designated AbilityOne participating nonprofit agencies, except that supplies identified on the Procurement List as available from DLA, GSA, or VA supply distribution facilities shall be obtained through DLA, GSA, or VA procedures (FAR 8.705-1).  It sounds like the item were not purchased from the central non-profit or a participating non-profit agency, but rather from a commercial source (let me know if that is incorrect).  If so, and if the items remain available through the AbilityOne program, but not from the vendor you selected, the items must still be acquired through the AbilityOne program, even if that means you have to cancel your order with a commercial source and re-procure them using current year funds.  If it were me, I would be less concerned about what AbilityOne would think, and be more concerned with ensuring I followed the applicable regulations, even if that meant I had to cancel the order.  This sort of thing happens from time to time, orders are placed at the end of the FY and for whatever reason in the next FY the contractor does not accept the order or does not perform and the order has to be cancelled an reprocured with current year funds.  It frustrates COs and customers, but it is what it is.

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Guest Vern Edwards
2 hours ago, duke38 said:

Greetings I have a situation where I awarded a contract under FAR Part 8 Ability One contractor for commodities on September 31st with expiring funds meaning the funds needed to be obligated by 31 September. The winning vendor just informed me that they cannot procure those items through Ability One, my issue is if I cancel this contract then I will lose all the funding because this funding has expired, is there any other options I have to use so I do not lose this funding? Anyone been in this situation before? I know the FAR allows for an extension of funds when a protest is received but what if the vendor cannot perform after award, is there any provisions that will allow me to reuse this expired funding?

Please see Principles of Federal Appropriations Law, 3d ed., which is published by the GAO, Vol. 1, Ch. 5, Sec. 6, Replacement Contracts.

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Was this an order placed under Part 13 procedures, or some other procedure?  If under Part 13, did the contractor sign the purchase order accepting the offer to purchase or perform at all?  Has the due date for performance stated I the purchase order passed?  If passed, has the offer to purchase been revived by inquiry into the status of delivery?  I'm trying to ascertain if there is a contract in place at all.

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