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    Due to the substantial delay, the question is if there is a bona fide need violation if we now modify the contract which was let in 2014 with OARS FY14 funds. Would that be a bona fide need problem of the current fiscal year regardless of the differing site condition due to the substantial Gov. delay.


    Answer

    The question revolves around a delay cause by the Government due to a substantial differing site condition and the use of FY 2014 funds which were originally obligated.  The answer depends on whether the change is deemed to be in-scope or out-of-scope. Per DOD FMR vol. 3, chapter. 6, para. 061001:  “Within-scope changes generally are funded from the appropriation that originally financed the contract until cancellation. Change-in-scope contract changes are financed from appropriations currently available for obligation at the time the change is made."  FY 14 MILCON funds are available for obligation during FY 14, FY 15, FY 16, FY 17 and FY 18.  The Bona Fide Needs Rule (which is actually a law - Title 31, US Code, Sec 1502) requires that appropriated funds be used only for needs or services that arise in the year(s) of the appropriation’s obligation availability period. 
    The situation you described appears to not violate the Bona Fide Need Rule; however, it is strongly suggested you speak with the BFM and/or Comptroller to ensure there are no additional policies set forth through your Command/Service.

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