Interagency Agreements and Funding

[Freyr]

Hi all, this is the first time I'm working with an interagency agreement and the question has been brought up of whether or not delivery of an item can be outside the period of performance of the underlying interagency agreement. For example, we have an interagency agreement from 1/1/2021 through 6/1/2021 and award an order to deliver 10 couches but the contractor can't make delivery until 6/15. Would that be allowable? What if they couldn't make delivery until 12/15 (just an example)? Is what matters the POP of the interagency agreement or the available period of the funds (like FY21 funds vs FY22 funds)? It seems like a bona fide need rule issue and I know there's some exceptions to it but I'm not sure how that works with the underlying interagency agreement or how that complicates it. We've been told that performance can't exceed the POP of the interagency agreement but does that also mean all deliveries and acceptances need to be made within that POP?

[ji20874]

The arrival and passing of a contract delivery date does not extinguish (1) the seller's obligation to deliver; or (2) the buyer's right to accept.  Yes, a Government agency can accept an item after the contract delivery date.  The Government agency could also terminate the contract for cause or default, or could condition late acceptance on the exchange of consideration.

But you are dealing with an IAA with another agency AND with your own contractor.  Your contractor is failing you, and you are failing the other agency.  These are separate matters.  You must deal with your contractor's failure to meet the terms of its contract, and you must deal with your failure the meet the terms of your IAA.

For your failure to meet the terms of your IAA with the other agency, just talk to the other agency and amend or terminate the IAA. 

There is no bona fide need issue with late delivery.

[Vern Edwards]

@Freyr What kind of interagency agreement? An assisted acquisition agreement under FAR 17.502-1(a)?

[joel hoffman]

Is there an amendment section in the IAA?

l found this at: https://www.fai.gov/sites/default/files/CPSG_Activity13.pdf

“The Amendment section of the agreement describes the
process for modifying the terms or conditions in Part A.”

search: “FAR 17.502-1(a)”

[joel hoffman]

The point is, if your agency can’t meet the specific terms of the IAA, you should contact your customer and determine if it will be acceptable to provide the couches later than 6/1/2021. If so, you can probably amend the IAA.

I think that somebody in your agency knows what the customer wanted when they executed the IAA . Good customer relations include communicating with each other.

Not sure if you are simply asking about the legalities of performance or are looking to see if the IAA can be modified. I’m thinking that any agreement can be modified, if necessary. However, don’t assume that it will be okay to simply deliver the items late without coordinating with your customer. “No slave is greater than their master.” 😁

[Freyr]

On 4/28/2021 at 9:30 AM, Vern Edwards said:

@Freyr What kind of interagency agreement? An assisted acquisition agreement under FAR 17.502-1(a)?

Thanks all, I'll try to answer the questions as best I can and clarify the situation. I'm not sure I'd call it an "assisted acquisition." The agreement itself cites "49 U.S.C. 106(1)" as the authority to enter into the agreement, that citation doesn't seem to be useful or accurate at all... The agreement essentially says that we'll provide services to this other agency which is normally in the form of our fed employees helping them with their projects. Of course we also need to purchase supplies/services to assist with that.

As far as the couches, what I'm talking about isn't a late delivery, it's a planned delivery of an item outside the POP of the IAA itself. We issue the order knowing the IAA expires on 6/1 and agree that the contractor will deliver on 6/15. I've been told the other agency has set up a new agreement and we're looking to spend all the funds on the old one before it's POP ends so they don't want to go through the hassle (however little) of extending this old one. 

[C Culham]

16 hours ago, Freyr said:

outside the POP of the IAA itself.

From history, with no specific reference other that at one time I believe FAA had a policy guidance document that provided for preparation of IAA's.  The IAA  guidance provided that the IAA is to provide the POP as you note along with funding code citations of the other agency inclusive of the expiration of the funding source.

This said  "I have been told" suggests that there is not language in the IAA as you have at least noted its stated authority (which by the way makes sense in that it is the FAA authority in long form to enter into IAA's).  Yet carrying your other comments forward it would seem that you should be posing your questions of concern to the agency that the IAA is with.   By example if the IAA is with an agency that has one year funding authority, the IAA is of general needs, and funds provided by the IAA expire with the POP of the IAA then your question makes sense.  Now in ji20874's example the concept of the funds still being available might apply because you are trying to accomplish something under the IAA in which a firm commitment was made but yet on the other hand if the IAA is just for general stuff not specifically the couches then there might be a case where the IAA funding and payment to your agency does have period limit.    Something like "pay for all efforts accomplished through XXXXX date" which is the end of the POP under the IAA.

I have probably complicated with too much above so condensed -

1. What if anything does the IAA say about funding - expiration especially?

2. What does the IAA say about what your agency is allowed to bill against the IAA.  Example issued PO's or actually delivered and paid for items.

3. Absent specifics in the IAA your "i have been told" comes in to play but it seems to me who should be telling you is the agency that you are  helping and what they believe what their funds can be used for and spent under the IAA and not your agency.

4.  In the end posing your questions and I recommend requesting appropriate references from your internal folks and the other agency seem the best route.

 

 

[formerfed]

@Freyr,  You are finding out there aren’t many precise rules for IA.  There are lots of holes in the process.  I can tell you that your exact situation, deliveries occurring past the PoP date, isn’t uncommon, and usually the IA remains unchanged.  That’s assuming your agency placed the order within the PoP.  There are lots of things found wrong with individual IAAs but I’ve never heard of your situation being cited.  The things IGs focus on are parking year end money, violations of the bona fide need rule, improper items purchased including use of wrong appropriations, etc.

It seems you have two choices - leave the IA as is or amend.  Amending can be as simple as a one page document sent to the other agency asking them to acknowledge the new date.

[Vern Edwards]

On 4/28/2021 at 5:49 AM, Freyr said:

Hi all, this is the first time I'm working with an interagency agreement and the question has been brought up of whether or not delivery of an item can be outside the period of performance of the underlying interagency agreement. For example, we have an interagency agreement from 1/1/2021 through 6/1/2021 and award an order to deliver 10 couches but the contractor can't make delivery until 6/15. Would that be allowable? What if they couldn't make delivery until 12/15 (just an example)? Is what matters the POP of the interagency agreement or the available period of the funds (like FY21 funds vs FY22 funds)? It seems like a bona fide need rule issue and I know there's some exceptions to it but I'm not sure how that works with the underlying interagency agreement or how that complicates it. We've been told that performance can't exceed the POP of the interagency agreement but does that also mean all deliveries and acceptances need to be made within that POP?

This is the kind of question that I find both fascinating and frustrating.

Freyr apparently has both the IAA and the order for couches. We do not. Yet Freyr is here asking us what the limits of those agreements will permit. How would anyone here know? Most people seem to think that the answer lies in the agreements themselves.

Why do people ask such questions?

I think such questions arise from a belief or intuition that there is a generic answer that applies to all such cases, and Freyr wants to know what that answer might be. Why do people think such things? I wonder if it arises from training that leads people to believe or suspect that there is a rule for every circumstance and that it is known to someone or can be found: There simply must be a rule for what to do or what may be done in any given situation given specific facts. Maybe there is one BIG rule, like what scientists call "the God equation." It's the rule that will unify all rules and answer all questions. It will tell us why is there something instead of nothing.

This is on my mind because I am reading a wonderful little book entitled, The Utopia of Rules: On Technology, Stupidity, and the Secret Joys of Bureaucracy, by the late, great, David Graeber.

I would just mod the order and move on, with no thought about the IAA. What's the other agency going to do? Sue me? Why do we have an IAA with them in the first place? Are we doing the buying for them? Are they paying us? Can one agency terminate another agency for default? Then again, if I extend the delivery date in violation of the IAA, would it render the modvoid ab initio? And what if...

And so it goes.