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Guest Vern Edwards

Who's afraid of the Anti-Deficiency Act?

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Guest Vern Edwards

The Antideficiency Act, 31 U.S.C. ? 1341, prohibits the making of an obligation in the absence of appropriated funds; 31 U.S.C. ? 1350 provides for fine and imprisonment for violations. Don't ask why, but I was scanning GAO's report of Antidefiniciency Act violations in FY 2009 and came across one by the Army for -- you'd better sit down -- $32,144,000. (Yes. 32 MILLION!) Here is how the GAO described the violation:

Army Materiel Command (AMC) personnel at Fort Belvoir, Virginia, obligated funds for a major military construction project without congressional authorization and without sufficient funds of the correct appropriation in fiscal years 2002 through 2005. Specifically, AMC improperly obligated Operation and Maintenance, Army (OMA) funds instead of Military Construction, Army (MCA) funds. The violation was discovered during a DoD Inspector General audit on July 29, 2005.

What about the perps?

The Army found three individuals responsible for the violations. All three received a memorandum of concern during the summer of 2008. To help prevent future violations, the Army revised its facilities management regulation and relocatable building policy.

http://www.gao.gov/ada/adarptinfofy09.pdf, page 8.

Memorandum of CONCERN! :lol:

The next time someone tells you that you can go to Leavenworth for violating the Antideficiency Act, laugh in their face. (All the same, don't do it, just in case.)

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It's been a long time since I was a government employee, but a couple of things come to mind:

The Contracting Officer should be able to rely on a properly completed and signed requisition; and should not have to verify, or be held responsible for the validity of, the fund cite provided by the bean counters.

Also, there would seem to be a big difference between spending the wrong "color" money (especially by those who are told the money is OK to spend), and spending when there is no money at all.

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If I was given the power to fix only one thing in the world of government contracting, it would be the Anti-Deficiency Act. I would eliminate it.

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Guest Vern Edwards

I disagree with you on this charlie. See FAR 37.104:

No officer or employee of the Government may create or authorize an obligation in excess of the funds available, or in advance of appropriations (Anti-Deficiency Act, 31 U.S.C. 1341), unless otherwise authorized by law. Before executing any contract, the contracting officer shall?

(a) Obtain written assurance from responsible fiscal authority that adequate funds are available or

(B) Expressly condition the contract upon availability of funds in accordance with 32.703-2.

In any case, a CO should be able to decipher a fund citation and know the difference between MILCON and O&M funds and know which are used for what.

But, why worry. How many COs are going to get a chance to make a $32 million ADA violation? And so what if you do?

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Unfortunately those kind of violations of the Anti-Deficiency Act are far too common. I fought hard against one in a previous job, where the client described the construction of a building on a vacant lot using OMA funding as a "renovation", and then considered a $1.3M estimate as "within the regulations". When I notified the KO of the facts, he overruled my objections in favor of moving forward with the acquisition. The opinions of our legal counsel also failed to dissuade the KO from deciding to go forward with the solicitation and award.

That situation was a factor in my decision to leave the Federal Service for a job in the private sector. I have since returned to the Federal Service, but I have not considered any office that deal with construction, hoping to avoid those kind of problems.

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I disagree with you on this charlie. See FAR 37.104:

In any case, a CO should be able to decipher an fund citation and know the difference between MILCON and O&M funds and know which are used for what.

But, why worry. How many COs are going to get a chance to make a $32 million ADA violation? And so what if you do?

Hopefully, now that the Army consolidated most of its Real Property and relocatable building Regs into AR 420-1, there will be more knowledge concerning the intricacies of temporary, relocatable buildings and less inclination to abuse the funding sources. Several Stateside Installations also got into trouble with the GAO or the Army IG a few years ago over funding on some huge relocatable, temp construction building projects. I don't remember the specifics, but a friend of mine was involved on the USACE execution side of the mess.

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