Can 52.232-18 be used as the authority to incrementally fund a contract? Or should this clause only be used as the incremental funding authority during a continuing resolution? Fundamentally I am asking when may this clause be used?
The following answer is based solely on the questions asked as we do not have all the facts pertaining to your contract. As we do not have access to the contract folder or program particulars that apply to this situation, we highly recommend you consult the Contracting Officer as well as the Legal Office as applicable.
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The issue of using the availability of funds clause and incremental funding are two separate issues.
Per FAR 32.703-2, you may initiate a contract action chargeable to funds of a new fiscal year before you have the funds available as long as you include FAR clause 52.232-18, Availability of Funds. What you are doing is placing the contractor on notice that the funds are not presently available, and the government’s obligation under the contract is contingent on the funds becoming available. We cannot pay them unless the funding becomes available, and the Government is not liable for payment until such funds become available.
Can you use FAR 52.232-18 as the authority to incrementally fund a contract, the answer is no. You cannot circumvent the system. Use of the clause 52.232-18 means that the funding is not available; which means there is no money to incrementally fund the contract. However, you may initiate a contract action contingent on this clause.
With regards to using DFARS clause 252.232-7007, Limitation of the Government’s Obligation as the authority to incrementally fund a contract under a continuing resolution, this is not correct either. The issue is that funding is not available. This clause describes the sum of money available for payment. I recommend that you re-read the prescription and the clause in its entirety for a better understanding.