Is this an ADA violation since the funds that are intended to sustain the POR are not being used for the intended purpose.
As you are probably aware, the Antideficiency Act prohibits federal employees from:
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o making or authorizing an expenditure from, or creating or authorizing an obligation under, any appropriation or fund in excess of the amount available in the appropriation or fund unless authorized by law. 31 U.S.C. § 1341(a)(1)(A).
o involving the government in any obligation to pay money before funds have been appropriated for that purpose, unless otherwise allowed by law. 31 U.S.C. § 1341(a)(1)(B).
o accepting voluntary services for the United States, or employing personal services not authorized by law, except in cases of emergency involving the safety of human life or the protection of property. 31 U.S.C. § 1342.
o making obligations or expenditures in excess of an apportionment or reapportionment, or in excess of the amount permitted by agency regulations. 31 U.S.C. § 1517(a).
Violations of the Antideficiency Act are subject to sanctions and appropriate administrative discipline. However, it is difficult to ascertain from the limited information provided in the question background whether or not an ADA violation has occurred. There are a number of other factors that would need to be considered and your acquisition team, including the appropriate agency budget officials should be involved with the discussion regarding the way forward in this scenario. Of critical importance with this decision, will be the understanding of the pertinent sections of the DOD Financial Management Regulations, DoD 7000.14-R. For example, the discussion of ‘Validating Commitments’ within Volume 3 (Budget Execution – Availability and Use of Budgetary Resources), Chapter 8 (Standards for Recording and Reviewing Commitments and Obligations) of the DOD FMR states that “When drafting contracts, procurement officials may modify the description of deliverable goods and services or contract line item structure used on a funded purchase request. However, if these changes are substantial, there is a risk that the goods and services procured under the contract no longer align with the purpose for which funds were committed and certified by the Authorizing Official as available and suitable for the purpose set forth in the purchase request’s information. To mitigate this risk, Authorizing Officials shall conduct an automated pre-award validation with the contract issuing organization. This check shall validate that committed funds remain available and suitable for the draft award’s intended purpose.
In addition, there is due diligence required on the part of funds holders. The FMR specifically state that “Funds holders are responsible for ensuring that funds appropriated or allotted to them are used consistently with the intent for which the funds were provided. Fundamental to being a Funds Holder is practicing sound fiscal management that complies with OMB and the DoD Financial Management Regulation (FMR) requirements. …….Attaining due diligence is contingent on the effective integration and synchronization of the mission stakeholders including Funds Holders, accounting, program management, and acquisition/logistics into a collaborative effort….. Due diligence is the development and maintenance of documentation that includes contract, invoice, disbursement, task monitor notes, correspondence, and all supporting information available to determine compliance with the provisions.
In summary, please review the pertinent parts of the DoD FMR with the appropriate personnel from your acquisition team before proceeding. As mentioned previously, be sure to include the cognizant agency budget officials, as well as legal and contracting representation in arriving at a decision for how to proceed.