Quick Question

If I contractor was supposed to be paid on a contract but years have passed and they never submitted an invoice but recently did, is that considered a Unauthorized Commitment in order to pay the vendor? I know it's technically not, but how can you go back and use funds that are no longer available? Thanks 

I believe Vern once wrote an article calling such contractors "Person[s] Without a Clue" - PWACs.

You don't say how many years have passed. More than six?

Less that six. @here_2_help. I believe 3 years now. 

Any help you can provide will be beneficial. Thanks @here_2_help

Okay. I'll let others more well-versed in fiscal law answer your question.

I know usually @Vern Edwardsis excellent at these type of questions as well. 

41 minutes ago, PATRICK3 said:

Quick Question

If I contractor was supposed to be paid on a contract but years have passed and they never submitted an invoice but recently did, is that considered a Unauthorized Commitment in order to pay the vendor? I know it's technically not, but how can you go back and use funds that are no longer available? Thanks 

See the GAO Red Book, Ch. 5, Section D.4, "Closed Appropriation Accounts":

Quote

Once an [appropriation] account has been closed: “[O]bligations and adjustments to obligations that would have been properly chargeable to that account, both as to purpose and in amount, before closing and that are not otherwise chargeable to any current appropriation account of the agency may be charged to any current appropriation account of the agency available for the same purpose."

31 U.S.C. § 1553(b)(1).

This is a major exception to the rule previously discussed that current appropriations are not available to satisfy obligations properly chargeable to a prior year.

 

1 hour ago, PATRICK3 said:

...is that considered a Unauthorized Commitment in order to pay the vendor? I know it's technically not...

Patrick,

If you already know it is not an unauthorized commitment, then you shouldn't ask the question.

If there was contractual coverage, even if the contract is three years old (or ten years old), it seems to me that is not an unauthorized commitment.

But the PR was never submitted to financing. @ji20874. That's why I was asking. The contractor was doing the work performed in the contract, but Task Orders were never cut against that IDIQ contract. Isn't that an UAC? 

3 minutes ago, PATRICK3 said:

But the PR was never submitted to financing. @ji20874. That's why I was asking. The contractor was doing the work performed in the contract, but Task Orders were never cut against that IDIQ contract. Isn't that an UAC? 

@ji20874Don't say anything. Just count to 100 and consider this thread dead.

4 minutes ago, PATRICK3 said:

The contractor was doing the work performed in the contract, but Task Orders were never cut against that IDIQ contract.

Were funds ever obligated on the IDIQ contract?  Funds for the minimum stated in the contract should have been obligated when the contract was awarded.  If no funds were obligated on the contract and no TO's issued authorizing work, what is the contractor submitting an invoice for?  Was the contractor given some verbal direction to perform the work without a TO being issued?

It was a contract that was supposed to be for a year but task orders were never cut against them. Very weird because it wasn't treated like an IDIQ contract. The government received the work and never paid the contractor. Now, 3 years later they're submitting invoices for that work, which was never submitted to finance and was never issued as Task Orders. Thanks for the help @Retreadfed

No reason to be rude though @Vern Edwards. Have a great weekend! 

Rude? By telling you how to find the funds to pay the bill? Time wasted, because you completely mischaracterized the situation in your opening post. You ought to be embarrassed.

 

4 hours ago, PATRICK3 said:

The government received the work and never paid the contractor.

Have you looked at 31 U.S.C. 1341 and 1342?  I think you need to see your agency's legal advisor.

13 hours ago, Vern Edwards said:

Rude? By telling you how to find the funds to pay the bill? Time wasted, because you completely mischaracterized the situation in your opening post. You ought to be embarrassed.

 

I agree completely.

Patrick3, these are questions you should ask of your agency legal, higher contracting and finance authorities, with all pertinent, situational facts- not here and not in a piecemeal fashion.

If there is no contract instrument (task order for the work) to pay the invoice against, they will have to be involved anyway.

@joel hoffmanI have noticed that when Patrick3 has written an opening post he has opened with "Quick Question."

A quick question about contracting is almost invariably a lousy question. That's because contracting is complicated, and so are the issues and the questions. And I have noticed, as have several others, that Wifcon Forum is infested with lousy questions. Why is that the case? How can we teach people to craft good questions? (Note the word "craft".) It has become an obsession with me.

One of the most important skills a contracting practitioner must master is the ability to craft good questions. The ability to craft good questions is essential to almost every facet of contracting. It is essential to statement of work preparation, proposal evaluation, contract pricing, contract formation, interpretation of regulations and contracts, contract quality assurance, analysis of requests for equitable adjustment and claims, dispute resolution, you name it—a practitioner must ask questions. Lawyers know that, and they get some practice in law school if they have good professors and fellow students. They get more practice during their associate apprenticeship. But contracting people get no training in the craft of question-design. Why not?

There are literally hundreds of books and articles about asking questions, maybe thousands. But except for books about developing questions for social science survey instruments, I have found relatively few that teach the general principles of question design, which involves more than just writing an interrogative sentence.

I have thought about writing an article or even a short book about it, but I've been afraid of making a fool of myself. It's a difficult subject. I know only that when I want to ask a question in a formal setting I spend a lot of time thinking about what I want to know and how to communicate that to the person I'm asking. I also think about what context to provide to the person I'm asking, and how to provide that information as clearly, completely, and concisely as possible. (Which requires putting myself in that person's shoes.) In order to know what context to provide I may have to research the subject of the question. (In the course of doing that I might answer my own question.)

But the internet and websites such as this one encourage "quick questions" from the clueless and thoughtless.

Asking a good question ain't an easy thing to do. It takes skill.

Ye shall be judged by your questions, so don't be quick.

 

@Vern Edwards,

I have been studying about asking questions. Legal issue statements and the “Under-Does-When” format could useful when asking a ‘quick question’?

@Jamaal ValentineThe under-does-when approach takes some thought. I don't think it would be suitable for "quick" questions. 

For those not familiar with the under-does-when (or under-when-does) approach to presenting a legal issue, see https://law.utexas.edu/faculty/wschiess/legalwriting/2007/05/issue-statements-under-does-when.html.

Also see https://law.utexas.edu/faculty/wschiess/legalwriting/2007/05/issue-statements-whether-style.html.

Note that the author says, "This [under-does-when] style is better than the 'whether' style because it is a complete sentence. But it still produces long, complicated sentences."

One must think long when crafting a long sentence.

Also, one of the problems with Wifcon questions is faulty "setup," which happens when the OP does not provide clear, sufficient, and relevant background.

There are two approaches to setup:

1. Here is my situation. Here is my question. I like this approach when the background can be provided in one or two short sentences.

Here is my situation: I am a CO getting ready to conduct my first source selection, for along-term complex service contract.

Here is my question: Under FAR Part 15, does the government have to conduct discussions when it receives more than 10 proposals?

and

2. Here is my question. Here is my situation. I prefer this approach when the background is long and complicated.

Here is my question: Under FAR Part 15, does a CO have to conduct discussions when the RFP said that award would be made without discussions, the government has received a large number of proposals, and a contract specialist engaged in an unauthorized exchange of information with one of the offerors?

Here is my situation: I am a CO conducting my first source selection. Our RFP said that we were going to award without discussions. We have received and evaluated 10 proposals. A contract specialist working for me contacted one of the offerors at the request of the SSEB but without my permission to ask for clarification of its proposal. The offeror emailed the contract specialist a five-page explanation and "clarification," which I have not yet provided to the SSEB. Our lawyer is on leave until the end of next week. I am under pressure to keep the source selection moving because the requirement is urgent. FAR does not address this situation. We really don't want to conduct discussions.

Agreed. The technique does require clear thinking and plenty of practice. However, done well, the format should produce a clear and concise single-sentence question. This question should be answerable ‘yes or no’, which requires thought about what significant factors should be included.

I just thought I would share something I’m personally studying and working on. Practitioners can try it or not. One benefit of WIFCON is that it allows editing and discussion. Question writers can leverage both and revise and improve their issue statements based on feedback.

 As a supervisor, I would appreciate a clear and concise question in the format of an issue statement. One that covers all necessary details and does not include unnecessary details. Plus, issue statements fit into the legal analysis or discussion (e.g., FIRAC) that is likely to follow. “Here is my situation” is the facts section of FIRAC.