Jump to content

Awarded Funds That Have Expired Due to a Stop Work Order


lawyergirl

Recommended Posts

Hello:  Does anyone know how the FAR works in terms of awarded but expiring funds due to a stop work order?  I want to explore the possibility of our Government agency client using the expired funds to award us a contract and looking for the mechanism to make that happen, e.g., is there any other way to accomplish this other than asking the Government agency client to provide us with a sole source award?

Thank you in advance!  

 

Link to comment
Share on other sites

What you mean when you said that fund are expired. Please explain how the funds expired.

The expired funds would no longer be available for new obligations, i.e., a new contract.

Im assuming that you mean that some existing contract has a stop work order and that somehow the government would de-obligate the funds from that contract to award a new contract.

Link to comment
Share on other sites

Please explain the relationship, if any, between the existing contract and a new contract.

For instance, is the existing contract under a stop order for non-performance and your firm would take over under a replacement contract after a termination for default and complete the job?

Thanks. 

Link to comment
Share on other sites

You can research the Bona Needs Rule in the GAO Redbook. Here is a WIFCON reference page: https://www.wifcon.com/bonafidecontents.htm

There are also many other on-line references. 
For instance , see these links related to DoD appropriations: 

https://comptroller.defense.gov/Portals/45/documents/fmr/archive/03arch/03_10_Jun09.pdf

https://www.gao.gov/assets/nsiad-91-156.pdf

https://www.acq.osd.mil/dpap/ccap/cc/jcchb/Files/Topical/Funding_Docs/training/appropriations_guidebook_09.pptx

Also:

https://acqnotes.com/acqnote/careerfields/bona-fide-need-rule

https://www.loc.gov/rr/frd/Military_Law/pdf/FLD_2014_Ch3.pdf

https://www.dau.edu/cop/contracting/dau sponsored documents/fiscal law brief.pdf

Bottom line is that there are very narrow purposes for which funds that are expired for new obligations can be used to fund a new contract. It is situationally dependent.

You didn’t provide enough information, so I recommend that you research the Bonafide needs rule and other sources for your answer. 

 

 

Link to comment
Share on other sites

13 hours ago, lawyergirl said:

Does anyone know how the FAR works in terms of awarded but expiring funds due to a stop work order?

The FAR doesn't "work" in that regard. It does not address that issue.

Funds are not "awarded." They are obligated. If de-obligated, they might not be available for new obligations.

Go to the GAO Red Book and read Ch. 5, Availability of Appropriations: Time; D. Disposition of Appropriation Balances; 3. Expired Appropriation Accounts.

Link to comment
Share on other sites

Joel Hoffman and Vern Edwards, thank you so much for your replies!  Our client is non-DoD.  Our award/stop work order involved a GAO protest that was dismissed upon the understanding that our agency client was committed to resolving it.  Last week, our agency client issued a revised RFP.  As far as we know our original award has not been rescinded.  It is our belief that if the agency does not purchase something from us, they will lose the obligated funds.  So we are looking for mechanisms to suggest to the agency for how to somehow keep the award alive and using the obligated funds.  In other words, I am looking for how the rules might apply here.  Hope this added info works!  

Link to comment
Share on other sites

From the GAO Red Book, Ch. 5, E. Effect of Litigation on Period of Availability:

Quote

If a protest is filed near the end of a fiscal year and the contract cannot be awarded until the protest is resolved, the contracting agency risks expiration of the funds.

Congress addressed this situation in late 1989 by enacting a new 31 U.S.C. § 1558(a), which currently reads as follows: “(a) …[F]unds available to an agency for obligation for a contract at the time a protest …is filed in connection with a solicitation for, proposed award of, or award of such contract shall remain available for obligation for 100 days after the date on which the final ruling is made on the protest…. A ruling is considered final on the date on which the time allowed for filing an appeal or request for reconsideration has expired, or the date on which a decision is rendered on such an appeal or request, whichever is later.” This provision applies to protests filed with GAO, the contracting agency, or a court under 31 U.S.C. §§ 3552 and 3556, and to protests filed with the General Services Board of Contract Appeals, the contracting agency, or a court under 40 U.S.C. § 759(f). 31 U.S.C. § 1558(b).

The actual statute, 31 USC 1558, reads as follows:

Quote

(a) Notwithstanding section 1552 of this title or any other provision of law, funds available to an agency for obligation for a contract at the time a protest or other action referred to in subsection (b) is filed in connection with a solicitation for, proposed award of, or award of such contract shall remain available for obligation for 100 days after the date on which the final ruling is made on the protest or other action. A ruling is considered final on the date on which the time allowed for filing an appeal or request for reconsideration has expired, or the date on which a decision is rendered on such an appeal or request, whichever is later.

(b) Subsection (a) applies with respect to—(1) any protest filed under subchapter V of chapter 35 of this title; or

(2) an action commenced under administrative procedures or for a judicial remedy if—(A)the action involves a challenge to—

(i) a solicitation for a contract;

(ii) a proposed award of a contract;

(iii) an award of a contract; or

(iv) the eligibility of an offeror or potential offeror for a contract or of the contractor awarded the contract; and

(B) commencement of the action delays or prevents an executive agency from making an award of a contract or proceeding with a procurement.

(Added Pub. L. 101–189, div. A, title VIII, § 813(a), Nov. 29, 1989, 103 Stat. 1494; amended Pub. L. 104–106, div. E, title LV, § 5502(a), (b), Feb. 10, 1996, 110 Stat. 698, 699.)

 

Link to comment
Share on other sites

21 hours ago, lawyergirl said:

Our client is non-DoD

I have worked for both non-DoD and DoD.   For the non-DoD a magic question to ask the agency is if their funds are "no-year" funds or limited funds like annual or multiple year.  I pose this as many non-DoD agencies manage their no year funds as if they are one year funds.  By example....

Appropriation for the US Forest Service is no year funds.  Apportion funds to a program from the appropriation.   Those funds are available for the fiscal year so apportioned my internal processes.  If unspent or otherwise not used then the fiscal office recalls the funds to the big pot and then re-apportions the funds the next fiscal year for appropriate use based on the appropriation.   In my experience terms like "our funds have expired" have been used for this effort which is a misnomer. 

The funds may have "expired" based on agency's internal processes but in truth the no year funds are available for appropriate use for which appropriated.

As has been pointed out when reading the Red Book (Chapter 5 specifically) please note discussion of No-Year Funds as well and consider posing the question to the agency as I have suggested. 

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

×
×
  • Create New...