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FAR
32.702: Adequate Funding |
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Comptroller
General - Key Excerpts |
The protester asserts that the agency is violating the
Antideficiency Act because it is requiring the contractor to
commence performance prior to placing an order under the
contract and obligating funds for that order. In the
alternative, the protester argues that the agency is
contemplating accepting voluntary services, which is also an
Antideficiency Act violation.
These arguments have no merit. First, with respect to the
obligation of funds, the Antideficiency Act provides that an
officer or employee of the United States may not “make or
authorize an expenditure or obligation exceeding an amount
available in an appropriation or fund for the expenditure or
obligation [or] involve [the] government in a contract or
obligation for the payment of money before an appropriation is
made unless authorized by law.” 31 U.S.C. § 1341(a) (2012); see
e.g., Antideficiency Act--Applicability to Statutory
Prohibitions on the Use of Appropriations, B-317450, Mar. 23,
2009. Here, in contrast, the protester does not allege that the
agency obligated or expended funds in advance or in excess of
available appropriations. Indeed, the essence of JRS’s prior
argument was that JRS would be required to undertake
preparations to perform even though there was no contract
minimum and the agency was not obligated to issue an order or
otherwise reimburse JRS for the costs of preparation. Since the
protester’s allegations do not demonstrate that the agency is
making an award in excess of an available appropriation, they
provide no basis to question the agency’s actions.
Second, with respect to the acceptance of voluntary services,
the Antideficiency Act provides that an officer or employee of
the United States may not “accept voluntary services . . . or
employ personal services exceeding that authorized by law except
for emergencies involving the safety of human life or the
protection of property.” 31 U.S.C. § 1342. This prohibition
“contemplates service furnished on the initiative of the party
rendering the same without request from, or agreement with, the
United States.” 7 Comp. Gen. 810, 811 (1928). Where, as here,
however, services are furnished pursuant to a formal contract,
they are not voluntary within the meaning of the Antideficiency
Act. Id.; General Services Administration; Real Estate Brokers’
Commissions, B-291947, Aug. 15, 2003. Accordingly, the services
performed by the vendor who is awarded the contract do not
qualify as “voluntary services” under the Antideficiency Act
since the obligation to perform those services arises pursuant
to contract. (JRS Staffing
Services, B-408202, Jul 16, 2013) (pdf) |
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Comptroller
General - Listing of Decisions |
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For
the Government |
For
the Protester |
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JRS Staffing Services, B-408202, Jul
16, 2013 (pdf) |
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U.
S. Court of Federal Claims - Key Excerpts |
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To determine adequate funding, plaintiff makes its own
calculations based on the O’Halloran estimate. Plaintiff argues
that the agency should have added contingency and impact costs
to the O’Halloran estimate to arrive at the proper amount of
funding. Since the O’Halloran estimate listed 7 “0% contingency”
costs, plaintiff adds to that estimate 7.5 percent in
contingency costs and $50,000 in impact costs for a total
estimate of $3,915,819. With the addition of design costs as
originally estimated by the agency at $406,394, the total
project cost, according to plaintiff, is $4,322,213 which
exceeds the $4,000,000 maximum the agency could spend for Minor
Construction Projects. First Am. Compl. ¶ 21. Plaintiff claims,
therefore, that the agency’s request and receipt of $3,916,584
in allocated funds for the project was not adequate funding. The
court disagrees. Plaintiff’s contentions wholly fail to prove
that the agency did not provide adequate funding for the
project. And perhaps even more important, while plaintiff
maintains that the agency was required as a matter of law to
rely on the O’Halloran estimate, it simply provides no support
for this proposition. Tr. of Oral Arg. at 47: 10-16. Plaintiff,
therefore, has neither provided a valid counter to the claim
that the agency set aside satisfactory funding nor offered a
justification for a court foray into the guarded realm of agency
management decisions. More specifically, the agency budgeted
$3,551,000 for the construction portion of the project.
(Ironically, this figure is only 1 percent lower than the
O’Halloran estimate of $3,596,111 for the main bid item. This in
itself sheds doubt on plaintiff’s assertions.) Although
plaintiff tacks on contingency and impact costs to the
O’Halloran estimate, it does not cite to, nor does the court
know of, any law requiring the agency to include these costs in
the project budget. For that matter, the agency’s allocated
funding for the project construction was sufficient to even
satisfy the O’Halloran estimate for alternate bid items 3, 4 and
5. The agency would surely have liked to have awarded the
contract for the main bid item, but it acted reasonably in
issuing the Solicitation with ample funding for three of the
alternate bid items. Simply put, the court finds that the
Solicitation rationally furthers the agency’s balancing of two
competing administrative concerns: a desire to purchase an ideal
construction project and a limited budget. Such considerations
often form the basis of agency management decisions, and
plaintiff has not proffered one cogent reason for the court to
interfere with the agency’s decision. In sum, plaintiff has not
shown that the agency was required by law to base its funding
request on the O’Halloran estimate. Nor has it demonstrated that
the agency’s estimate for the project was arbitrary and
capricious or contrary to law. (First
Enterprise v. U. S., No. 04-0082C, June 25, 2004) (pdf) |
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U.
S. Court of Federal Claims - Listing of Decisions |
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For
the Government |
For
the Protester |
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First Enterprise v. U. S., No.
04-0082C, June 25, 2004 (pdf) |
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