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  • Question

    Are there limitations when using 2 year (multiple year) appropriations in multi-year contracting (two year POP ending beyond the 2nd year of the multiple year funding's availability)? Since the availability of the 2 year FY22/23 appropriation ends at the second FY (9/30/23), does that prevent me from awarding using POP 1/18/22-1/17/24? or is bona fide need legitimate for multiple year appropriate in multi-year contract? The contract POP is crossing MULTIPLE FY's (1/18/22-1/17/24).


    Answer

    While the rules may vary for the Department of Commerce,  for the DoD this would definitely not be legal.  Numerous fiscal lawyers have discussed how you cannot use any means to extend the life of a multiyear appropriation past it's Congressionally designated timeframe (as this questioner is suggesting).  This scenario in DoD mostly comes up with organizations that want to use the 2410 Severable Services exception (which only applies to annual appropriations) for multiyear appropriations (which you cannot legally do). 

    In DoD, multiyear contracts are a contracting exception (not a financial one) and they are funded just as you would any other regular contract - on an annual basis.  Multiyear contracts also do not exempt you from the Bona Fide Needs rule.  Therefore, in DoD, this question would not be legal on a few counts. I recommend speaking to your legal, since the Department of Commerce  might possibly have different regulations.

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