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The Federal Budget for 2018

by Mary Love - October 24, 2017

The federal fiscal year begins on October 1, so acquisitions must now be paid for with FY2018 funding. And indeed there is funding for FY2018 – but only through Dec. 8, 2017. http://www.crfb.org/blogs/appropriations-watch-fy-2018 

When Congress fails to enact the full annual appropriations bills by September 30, it can pass a continuing resolution (cr), extending the pre-existing appropriations at the same levels as the previous fiscal year, for a specific amount of time. In fact, since 1977 Congress has enacted the regular appropriations on time only four times:  1977, 1989, 1995 and 1997. So not in 20 years!

The Anti-Deficiency Act, 31 U.S.C. 1341 and FAR 32.702, state that no officer or employee of the government may create or authorize an obligation in excess of the funds available, or in advance of appropriations unless otherwise authorized by law.  But funds under a cr are often insufficient to fully pay for a contract action that may be required during its term. For instance, think about annual maintenance contracts, or option periods. While no existing contract clause permits partial funding of a contracting action the following clauses are often utilized in solicitations prior to, or during a cr. Neither clause would lead to a contract prior to the availability of appropriated funds. Both would require the contract to be delayed and/or modified to incorporate subsequently appropriated funds, or for termination for convenience of the government if the funding is not approved.

52.232-18  Availability of Funds.  As prescribed in 32.706-1(a), insert the following clause: Availability of Funds (Apr 1984)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.

52.232-19  Availability of Funds for the Next Fiscal Year.  As prescribed in 32.706-1(b), insert the following clause: Availability of Funds for the Next Fiscal Year (Apr 1984) Funds are not presently available for performance under this contract beyond ________. The Government’s obligation for performance of this contract beyond that date 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 for performance under this contract beyond _____, until funds are made available to the Contracting Officer for performance and until the Contractor receives notice of availability, to be confirmed in writing by the Contracting Officer.

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