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  • Question

    Does the class deviation apply to FY 2013 funds and to new task/delivery orders issued under existing contracts?


    Answer

    In responding to your question, I must clarify that the BPA was put into place prior to the date of the original letter directing the Deviation, which was Jan 23, 2012 with respect to Sec 8124 of Public Law (112-74) and Mar 9 2012 with respect to Sec 8125 of Public Law (112-74). However, the date of the BPA becomes somewhat irrelevant when reading the text of the letter, which is a summary of the Appropriations Act of 2012 referenced in the letter which is also a matter of Public Law (112-74). The wording in the law in regards to this question states:
     
    Sec. 8124. None of the funds made available by this Act may be used to enter into a contract, memorandum of understanding, or cooperative agreement with, make a grant to, or provide a loan or loan guarantee to, any corporation that any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability, where the awarding agency is aware of the unpaid tax liability, unless the agency has considered suspension or debarment of the corporation and made a determination that this further action is not necessary to protect the interests of the Government.
     
    Sec. 8125. None of the funds made available by this Act may be used to enter into a contract, memorandum of understanding, or cooperative agreement with, make a grant to, or provide a loan or loan guarantee to, any corporation that was convicted of a felony criminal violation under any Federal law within the preceding 24 months, where the awarding agency is aware of the conviction, unless the agency has considered suspension or debarment of the corporation and made a determination that this further action is not necessary to protect the interests of the Government.
     
     
    As you read these sections, the first sentence in each states that "none of the funds made available by this Act may be used to enter into a contract..." and there is a caveat at the end of both Sections 8124 and 8125 that states "unless the agency has considered suspension or debarment of the corporation and made a determination that this further action is not necessary to protect the interests of the Government."
     
     The argument the contractor makes that it is not necessary to modify the original BPA is correct. The base BPA should not have cited any  accounting or appropriation data (FAR 13.303-3) and therefore by not modifying the BPA,
    there is not a compliance issue with the law, Appropriations Act, or the DFARS Deviation. However, FAR 13.303-5(e)(4) outlines that the appropriation data shall be on the order. Unless the caveat has been addressed by the agency AND the determination made that no further action is necessary, each order that utilizes FY12, FY13 or subsequent out years until this deviation is rescinded, shall have DFARS provision 252.209-7999 with the statement from the contractor. If your contractor does not sign the statement that neither of the situations apply to them, then they "shall not be considered for award" unless the agency official considers that debarment or suspension is "not necessary to protect the interests of the Government". Since this is a BPA, there is no need to order from that contractor and you can award from another BPA for the supplies or services they were to provide.
     
     The basic premise of either of these sections of the public law is to prevent the expenditure of funds from FY12 into the future for those contractors that cannot answer in the negative to the two questions in the provision referenced by the DFARS Deviation. If your current contractor cannot or does not answer the questions, then they simple "cannot be eligible for award".

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