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  • Question

    Can the contractor protest the change of POP?


    Answer

    This is principally a fiscal law matter that involves the Bona Fide Needs rule.  Essentially, the timing of the obligation and the real need of the goods or service must be within the fund’s period of availability – “current year money for current year funds”. 

    Supplies are a bona fide need in the period in which they will be used, but there are exceptions such as lead times and stock levels (see the DoD Financial Management Regulation, vol. 3, ch.9, para. 080303; non-DoD agencies should check governing financial regulations and GAO opinions such as B-138574).  


    Services are a bona fide need of the fiscal year in which they are performed and must be funded with the current year funds. 
    However, DoD is authorized to award a contract for severable services not to exceed 12 months at any time during a fiscal year using funds available when the contract is awarded (10 United States Code Section 2410).  Non-DoD agencies find their authority in 41 United States Code Section 3902.

    Severable service contracts are those where the services cannot be identifiable, independent sections. 
    If a service is not severable (it is for a single outcome) then the funding available in the fiscal year of the contract award is used to fund the entire contract, even if the final outcome will cross fiscal years (see GAO opinion B-240264).

    Your IDIQ contract should be read to determine if anything was included that is contrary to the discussion above. 
    An earlier AAP question/answer featuring an IDIQ and involving the period of performance may contain additional perspectives that you might find useful in resolving your matter.  https://dap.dau.mil/aap/pages/qdetails.aspx?cgiSubjectAreaID=42&cgiQuestionID=125530
     

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