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Greetings, 

Does FAR 52.232-18 Availability of Funds, allow authority to issue an award to a task order under a single award IDIQ.  Certainly understand it needs to be included in the Solicitation/RFP and award.  However, can the award be issued without the certified funding while it's forthcoming and not be at risk of an ADA?  

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Same as Constricting Officer...

Then,

Sure, why not?  You can add a blurb in the task order to say something like--

  • For the purposes of the task order clause at FAR 52.232-18, Availability of Funds, the word "contract" is understood to mean "task order."

Is your automated system capable of handling this?

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Just now, ji20874 said:

Sure, why not?  You can add a blurb in the task order to say something like--

  • For the purposes of the task order clause at FAR 52.232-18, Availability of Funds, the word "contract" is understood to mean "task order."

I understand why the above statement is made but I do wonder.   If 52.232-18 is in the parent IDIQ is not the task order, an action under the contract, already subject to the 52.232-18 so simply issuing the task order and noting it is issued pursuant to 52.232-18 all that is needed?   So in lieu of the wording proposed why would not this work - This task order is subject to 52.232-18.

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2 hours ago, C Culham said:

If 52.232-18 is in the parent IDIQ is not the task order, an action under the contract, already subject to the 52.232-18 so simply issuing the task order and noting it is issued pursuant to 52.232-18 all that is needed?   So in lieu of the wording proposed why would not this work - This task order is subject to 52.232-18.

To play "Devil's Advocate," the language present in 52.232-18 is as follows:

"Funds are not presently available for this contract. The Government’s obligation under this contract is contingent upon the availability of appropriated funds from which payment for contract purposes can be made. No legal liability on the part of the Government for any payment may arise until funds are made available to the Contracting Officer for this contract and until the Contractor receives notice of such availability, to be confirmed in writing by the Contracting Officer."

It doesn't say this and resulting contracts (DO/TOs). I don't see how this particular language would flow from one contract action (IDC solicitation/award) down to a separate (DO/TO solicitation/award) contract action. 

Splitting hairs I know, but all parent contract's clauses do not flow down to resulting contract actions. 

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That's why the task order might include text such as, "This task order is subject to 52.232-18."

There are probably hundreds and maybe even a thousand uses of the word "contract" in the FAR and FAR clauses which are equally applicable to "task order."  

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54 minutes ago, ji20874 said:

That's why the task order might include text such as, "This task order is subject to 52.232-18."

I am good as long as such a statement is present. 

55 minutes ago, ji20874 said:

There are probably hundreds and maybe even a thousand uses of the word "contract" in the FAR and FAR clauses which are equally applicable to "task order."  

Without a doubt. 

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9 hours ago, Constricting Officer said:

To play "Devil's Advocate,"

Can I as well?   With admission that I believe every contract matter depends on the language of the contract.

"Task orders issued under indefinite quantity contracts “represent the government’s exercise of existing contract rights and are not separate, individual contracts.”"  Reference - https://www.cbca.gov/files/decisions/2021/CHADWICK_07-23-21_6885__ROCJOI_MEDICAL_IMAGING_LLC.pdf

With the additional admission that my recollection was that Vern Edwards had posted something about the case on WIFCON but I could not find it so went looking rather than posting a link to Vern's discussion.  Bottom line my recollection was the basis for my original post.

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Army, to avoid any confusion, I’d reference the clause and start by saying something to the effect that no funds are  presently available for this task order, see clause….

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This thread illustrates the value of top-notch expertise among COs and contract specialists.

The Availability of Funds clause was not designed with IDIQ contracts specifically in mind. (I made a quick search for a case "on point," but did not find one.) I have traced the current clause to a 1963 Air Force regulation, but it probably originated before then. The clause anticipate one contract, not many, as is the case under IDIQ contracts, with each order being a "contract."

I suspect that the clause applies not only to the basic contract, but to each order, as well. But I do not KNOW that a board or the COFC has or would rule that way.

In these days of massive use of IDIQ contracts, a top notch CO might have anticipated this question—and others like it arising from other clauses—when writing the solicitation for the contract and written a Section H or commercial item clause that addressed the matter. Problem solved.

We work in an IDIQ world these days, and apparently will for the foreseeable future. But the FAR councils have not made appropriate adjustments to the FAR that take into consideration the many new questions that have arisen since FASA was enacted in 1994 and changed almost everything. Since they are not thinking, COs must, because nobody else will.

I think that ji20874 and C Culham gave good advice. (Stalking you again, Carl.)

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Here's a question:

Suppose that a fixed-price contract contains the Availability of Funds clause, and after award the CO duly notified the contractor in writing that funds are available.

Does the clause automatically apply to every change order issued subsequently? Are change orders not binding until the CO notifies the contractor in writing that funds are available? A change order is a contract as defined in FAR 2.101. Should the CO include a statement in change orders that FAR 52.232-18 does or does not apply?

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15 hours ago, C Culham said:

With admission that I believe every contract matter depends on the language of the contract.

I concur with this statement as well, concerning a "contract matter."

Two contract matters are what you can order (supplies/services covered) and when you can order (between X and X dates). I have yet to see an IDIQ that addresses the FY appropriations that can be used (I am sure there are some (special programs), but few). The CO who awarded the IDIQ with that clause present was likely doing so at the EOFY and awaiting funding for the guaranteed minimum in October. If a future task order is in the same situation, then put the language in there as advised above. In my mind, the task order placed three months later with current FY funds in hand is not subject to that clause. If this is the case, then the clause is there for use, but does not automatically apply to all. 

I sent a proposal request a few weeks ago to a single award ID/IQ holder we use for simple construction projects (<$500K). I knew it was EOY with small a chance of getting it negotiated and awarded with current FY$ I had, so I added the clause. I don't need to consult the parent contract to see if the clause is there. It is a matter of appropriation law, related to the task order. Not the parent contract. 

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5 hours ago, Vern Edwards said:

Suppose that a fixed-price contract contains the Availability of Funds clause, and after award the CO duly notified the contractor in writing that funds are available.

Does the clause automatically apply to every change order issued subsequently?

No. A change order is a separate contract and the language in the clause (as outlined early in the thread) restricts it to "this contract." 

5 hours ago, Vern Edwards said:

Are change orders not binding until the CO notifies the contractor in writing that funds are available?

Not binding - If the clause is used in the change order and funds are not available at the time the modification is awarded. Additional notification required. 

Binding - If the funds are available when the modification is awarded. There is no need for the clause to be present in the situation. 

5 hours ago, Vern Edwards said:

A change order is a contract as defined in FAR 2.101. Should the CO include a statement in change orders that FAR 52.232-18 does or does not apply?

Only if it does apply. Adding language that says something not present, doesn't apply is a waste of time. 

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On 9/27/2021 at 1:21 PM, Constricting Officer said:

"Funds are not presently available for this contract.

Changing the question a little, the Limitation of Cost clause says "The Contractor shall notify the Contracting Officer in writing whenever it has reason to believe that-

           (1) The costs the Contractor expects to incur under this contract in the next 60 days, when added to all costs previously incurred, will exceed 75 percent of the estimated cost specified in the Schedule."  If this clause is included in an IDIQ contract, does it apply at the IDIQ contract level, at the order level or both?

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To be meaningful, the clause has to apply at the task order level.  A prudent contracting officer might include text in either the parent IDIQ contract or in the task order to this effect.

And if the task order has multiple cost-reimbursement CLINs, a prudent contracting officer might further include text indicating that the LOC clause applies at the CLIN level.

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3 hours ago, Constricting Officer said:

A change order is a separate contract and the language in the clause (as outlined early in the thread) restricts it to "this contract." 

@Constricting OfficerWhat do you mean by "separate contract"? Are you saying that a within-scope change to contractual work is severable work?

Contractual severability (aka, divisibility) is a legal concept. See Administration of Government Contracts 5th ed., pp. 809 -810.

If when you say "separate" you don't mean that change orders are severable from the rest of the contract, what do you mean?

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It might be helpful at this point to review the FAR coverage of contracts conditioned upon the availability of funds.

Quote

32.703-2 Contracts conditioned upon availability of funds.

      (a) Fiscal year contracts. The contracting officer may initiate a contract action properly chargeable to funds of the new fiscal year before these funds are available, provided that the contract includes the clause at 52.232-18, Availability of Funds (see 32.706-1(a)). This authority may be used only for operation and maintenance and continuing services (e.g., rentals, utilities, and supply items not financed by stock funds)-

           (1) Necessary for normal operations; and

           (2) For which Congress previously had consistently appropriated funds, unless specific statutory authority exists permitting applicability to other requirements.

      (b) Indefinite-quantity or requirements contracts. A one-year indefinite-quantity or requirements contract for services that is funded by annual appropriations may extend beyond the fiscal year in which it begins; provided, that-

           (1) Any specified minimum quantities are certain to be ordered in the initial fiscal year (see 37.106) and

           (2) The contract includes the clause at 52.232-19, Availability of Funds for the Next Fiscal Year (see 32.706-1(b)).

      (c) Acceptance of supplies or services. The Government shall not accept supplies or services under a contract conditioned upon the availability of funds until the contracting officer has given the contractor notice, to be confirmed in writing, that funds are available.

 

And:

Quote

32.706-1 Clauses for contracting in advance of funds.

      (a) Insert the clause at 52.232-18, Availability of Funds, in solicitations and contracts if the contract will be chargeable to funds of the new fiscal year and the contract action will be initiated before the funds are available.

      (b) The contracting officer shall insert the clause at 52.232-19, Availability of Funds for the Next Fiscal Year, in solicitations and contracts if a one-year indefinite-quantity or requirements contract for services is contemplated and the contract-

           (1) Is funded by annual appropriations; and

           (2) Is to extend beyond the initial fiscal year (see 32.703-2(b)).

 

 

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In addition to reviewing FAR coverage of 52.232-18 and -19 the following two FAR coverages came to mind as well as I read the most recent posts.

52.216-18 with this excerpt -  "(b) All delivery orders or task orders are subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control."

FAR 16.505(7)(vii) where condensed states   "(7)Orders placed under indefinite-delivery contracts must contain the following information:...(vii) Accounting and appropriation data.

17 hours ago, Constricting Officer said:

so I added the clause

So in doing so you did not change the parent IDIQ "contract"?   If so was not a conflict created between the "contract" and the order  pursuant to 52.216-18?  The devil in me would suggest yes and to alleviate the matter the 52.232-18 clause should have been added to the "contract" before adding to the TO.   And most intriguing to me is did you give the contractor the opportunity to consider a price change for your ability to insert the clause?

22 hours ago, Vern Edwards said:

Here's a question:

Suppose that a fixed-price contract contains the Availability of Funds clause, and after award the CO duly notified the contractor in writing that funds are available.

Does the clause automatically apply to every change order issued subsequently? Are change orders not binding until the CO notifies the contractor in writing that funds are available? A change order is a contract as defined in FAR 2.101. Should the CO include a statement in change orders that FAR 52.232-18 does or does not apply?

I believe the answers are found in FAR 43.105.

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My assumption from the original posting is that the Availability of Funds clause is included in the parent IDIQ contract.

If not, it seems reasonable for a contracting officer to include the clause in the notice (solicitation) for a specific task order opportunity, just for that task order.

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Just now, ji20874 said:

My assumption from the original posting is that the Availability of Funds clause is included in the parent IDIQ contract.

If not, it seems reasonable for a contracting officer to include the clause in the notice (solicitation) for a specific task order opportunity, just for that task order.

 

On 9/27/2021 at 6:22 AM, ArmyofOne said:

Greetings, 

Does FAR 52.232-18 Availability of Funds, allow authority to issue an award to a task order under a single award IDIQ.  Certainly understand it needs to be included in the Solicitation/RFP and award.  However, can the award be issued without the certified funding while it's forthcoming and not be at risk of an ADA?  

@ji20874  It may seem that your assumption could be correct but I believe there is a disconnect on your further comment based on the OP.   There would be no notice/solicitation for a single award IDIQ?

That questioned it is my view the thread has changed from a specific issue posted by the OP to a general discussion of 52.232-18 as related to IDIQ's and task orders.   As to adding a clause to a multiple award IDIQ task order fair opportunity notice I do wonder about doing so.  Does it change the scope of the IDIQ if the clause is not in the parent "contract" considering the 52.216-18 clause especially when talking about FFP task orders?   Am I stretching, maybe so.   Then I think about fair dealing where the government with their heavy hand now proposes a new clause for a task order that the contractor has to accept or not get the work, most likely without fair compensation to accept the clause (unless of course the parent IDIQ anticipated upfront that the government would be adding clauses to task orders willy nilly.)  My view is expressed as I truly suspect that a contractor has a different view about wanting to do work that is fully funded versus that which may no be.

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If the -18 Availability of Funds clause is included in the parent single award IDIQ contract, it seems to me that the clause can only have meaning when it is applied to task orders -- the clause seems wholly irrelevant to the parent IDIQ contract.

14 minutes ago, C Culham said:

My view is expressed as I truly suspect that a contractor has a different view about wanting to do work that is fully funded versus that which may no be.

I'm not reading any indication in this thread about a contractor having to do work that is not fully funded.  The -18 clause is not an incremental or partial funding clause.  Upon receipt of a task order with the -18 clause, the contractor has zero responsibility to start any work.

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6 minutes ago, ji20874 said:

If the -18 Availability of Funds clause is included in the parent single award IDIQ contract, it seems to me that the clause can only have meaning when it is applied to task orders -- the clause seems wholly irrelevant to the parent IDIQ contract.

Or how about both?   Application to TO's and the possibility of it applying to award of the parent - example parent award made on August 1 with money available for the obligation of the minimum on Oct 1.

8 minutes ago, ji20874 said:

The -18 clause is not an incremental or partial funding clause.  Upon receipt of a task order with the -18 clause, the contractor has zero responsibility to start any work.

And there in is the $69 question.   Why even issue the TO?   With assumption that it is a single award IDIQ, that the order is within the min/max so the contractor has the duty to perform when issued.............just wait for the dang money and issue it then.

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