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So we have multiple new service contracts and option periods that started 1 Oct. We received certified funding documents covering the entire option period or base periods for these contracts on 1 October and awarded or exercised options at that time, fully funding the year. Recently, the customers came back, asking to have the obligated funds reduced down to the CR authority that they received, and to incrementally fund for the rest of the year as they receive more funding. We are unsure what happened in the decision process that these were certified when they weren't sure how much would be received. None of these contracts were awarded with the appropriate clauses or CLIN structure for incremental funding. My questions are: Is there anything stopping us from reducing the obligation to the CR amount after the fact? (besides the many hours of overtime I'll have to requests for my folks to complete such an undertaking). If not, would we need to work out the incremental funding (CLIN structure, clauses etc) on each contract before making the reduction, or could we complete it all in one action? Further: Is it possible this is an ADA violation on the person certifying the funds? I would think that the entire Wing/MAJCOM and possible, the AF would have to be over spent for there to be a true ADA violation, but am I wrong? Thanks in advance for any guidance you can lend!
Our agency has a long-standing policy of allowing incremental funding across fiscal years. As an anecdote, we had this one requirement for chaplain services that began 1 Sep 16, ends 31 Aug 17, and the RA only wanted to provide 2 months of FY16 OMA funds, intending to fund the other 10 months with FY17. Am I crazy, or doesn’t this violate the ADA by obligating the government in advance of funding? As the KO, I pushed back, requesting full funding or a change to the base period to match available funding. The RA was not pleased, nor was our management. We’ve been going back and forth for months and still are, prompting the RA to provide the full funding to ensure award by 30 Sep 16. But the fight is still on; management won’t rescind this policy, stating that we have to help the RA with their budget difficulties. Agency regulation requires management to report even *suspected* cases of ADA violations to HQ, but they won’t. I’ve bounced this off of other KOs for a reality check; they all agree that it is an ADA violation. As fish don’t know they’re wet, do we not know we’re wrong? Our legal counsel cites FAR clause 52.232-18 as authority; we disagree. Who’s right?
I've always issued bilateral modifications when adding funds incrementally to a contract. I do this because I want the contractor to acknowledge that it can continue working up to the new amount and that it knows that any work performed beyond the funded amount is at its own risk. I've got someone telling me that this type of modification can be made unilaterally. I can see where this person is correct, but I'd like to know what the proper method is. Should a modification to add funds incremetally to a contract be made unilaterally or bilaterally.... or does it even matter?
This question has probably been asked many times. I'll be happy if someone can provide me with a link to a previous thread that answers it. The FAR differentiates between cost reimbursement contracts and Time-and-Materials / LH contracts. T&M contracts at my agency include the Limitation of Funds clause, which does not specifically make mention of T&M contracts. I would venture to say that most of our T&M contracts are incrementally funded, and the funded amount is less than the contract ceiling price. My question is this: If the government and a contractor have agreed on a ceiling price under a T&M contract. By definition of the ceiling price, the government has told the contractor it will pay up to the ceiling amount for the contractor's best effort and the contractor cannot exceed the ceiling, except at its own risk. This leads me to believe that the government has created an obligation up to the contract's ceiling price and that an equivalent amount of funds must be obligated against the contract to keep from being anti deficient. How can we limit this obligation by simply stating in the contract that we have obligated only "X" amount of dollars (less than the ceiling) and telling the contractor that it cannot exceed this amount? I ask this because I'm seeing contracts with a ceiling price - the price that we agreed the work might cost - but then the contracts in question include language titled Obligated Amount that notify the contractor that there is less money than the ceiling price on the contract and that they cannot exceed the obligated amount, except at their price. Doesn't this contradict the stated and agreed upon ceiling price? If incremental funding is permissible, what is the appropriate method of stating this in the contract, versus the ceiling price?