I did not see any previous posts when searching, so I apologize if this is posted elsewhere. I included the complete text of the clause at the end for ease of reference. My question is:

Does this clause preclude the contractor from submitting invoices for the work performed during the period? The language only expressly covers how the government will make payments once funding is available. It then goes on to state it supersedes other provisions dealing with payment or financing, but includes the Prompt Payment Act reference. This makes it seems contractors can invoice per the normal clause (details/cycles, etc.) those invoices would just sit and start to accrue interest from those submission dates until funds are available?

Is there other express language that I am missing that I can point to that states invoicing is not allowed (which would limit the time of any accrued interest under the Prompt Payment Act)?

"The Department of Defense has the authority to enter into this contractual action and to obligate the Government in advance of appropriations; however, appropriated funds are not currently available to make payments under this contract to liquidate this obligation. When appropriated funds become available, the Government will make payment in accordance with the terms of this contract, including the payment of interest where applicable under the Prompt Payment Act. This clause supersedes conflicting terms of any other provision in this contract dealing with contract payment or financing until funds are made available to the Contracting Officer for this contractual action."

I happened to see this a couple days ago. It’s saying if the government is shut down, an invoice has not been accepted and the Prompt Payment clock hasn’t started.

Federal News Network - Helping feds meet their mission.

Yet another way the government shutdown is making things...

"Fortunately for federal employees, they do have a law on the books from 2019 that guarantees back pay. Contractors don't have that," said Stephanie Kostro.

Thank you @formerfed As long as the government does not "accept" the invoices, the clock doesn't start is what I took from that. I appreciate the response.

"Jared Serbu I’m so glad you brought that up. I was just going to ask about that. Based on past shutdowns, are there any exceptions to the Prompt Payment Act by virtue of the government being shut down, or is the clock the clock basically no matter what as soon as the government accepts the invoice?

Stephanie Kostro So the key phrase here, Jared, is that an invoice has to be accepted for that clock to start ticking. And so what the government could do is just not accept that payment into the system. And therefore, the clock for the Prompt Payment Act doesn’t start. So it really is a small subset of contracts that I’m talking about and invoices that I am talking about, but they’re not zero. They are invoices out there that the clock has been ticking. They’re going to probably bust through that Prompt Payment Act window, and then costs will be incurred on the government’s behalf to pay the contractor the penalty it’s due."

I wonder if Ms. Kostro understands constructive acceptance under the Prompt Payment Act. See FAR 32.904(b)(1)(ii)(B)(1).

Don, I interrupted her comment to mean receipt of an invoice. Poor choice of wording on her part using accepted.

Acceptance of an invoice is not an issue. Under the Act, it is receipt of a proper invoice by the designated billing office that starts the interest clock running. (FAR 52.232-25(a)(1)(i)) The fact that the government does not review the invoice for propriety until 30 or more days after receipt is irrelevant as long as the invoice is proper. If it is not proper, interest does not ever start to run on that invoice until the defect is corrected and the corrected invoice is received by the billing office designated in the contract. Thus, the question is what constitutes receipt by the government particularly when we are dealing with electronic submission of invoices?

I checked the WAWF Pay Official training and the system records the invoice received date.

So if a contractor can document invoice receipt, partially with electronic systems like WAWF or IPP and either actual or constructive acceptance, then they are eligible for interest from late payment.

There is this clause for acceptance in the contract:

CONSTRUCTIVE ACCEPTANCE

".......acceptance of services required herein shall be deemed to have occurred constructively on the 7th calendar day after performance for

the purpose of determining the payment due date and computing Government interest payments pursuant to the Prompt Payment clause at 52.232-25."

Electronic submissions are required (a different platform from WAWF but normal circumstances, the clock would start when submitted into the system), so if the government system does not close down the system for submission, the invoice submission into the system by contractor plus the 7 days acceptance language from the clause above, that would make them eligible for accruing interest, is that a correct understanding?

Or does the language in the deviation negate the Constructive Acceptance clause above? Deviation language for reference "This clause supersedes conflicting terms of any other provision in this contract dealing with contract payment or financing until funds are made available to the Contracting Officer for this contractual action.""

I appreciate the attention to this subject; I am just trying to prepare either way regarding accrued interest due if this shutdown lasts that long for it to be applicable.

I don't think the deviation language conflicts with the Prompt Payment clause.