1. 1 BUYING LIGHTNING DATA LESSONS LEARNED AND FUTURE CHALLENGES TO AVOID ANTI-DEFICIENCY DAN CLEVER DIRECTOR NWS ACQUISITION DIVISION 6/15/05

2. 2 PURPOSE 1.To provide acquisition support to NWS by acquiring lightning data for use by NOAA and other government agencies. 2.To provide an update of the status of our current Lightning Data contract. 3.To ensure that our contracts are in compliance with all applicable laws and regulations.

3. 3 DEFINITIONS Incremental Funding: The provision or recording of budgetary resources for a program or project based on obligations estimated to be incurred within a fiscal year when such budgetary resources will not cover all the program’s or project’s obligations. Contracts that cannot be separated for performance by fiscal year may not be funded on an incremental basis without statutory authority. -GAO Accounting and Financial Management Division

4. 4 DEFINITIONS Full Funding: The provision of budgetary resources to cover the total estimated cost of a program or project at the time it is undertaken (regardless of when the funds will actually be obligated). -GAO Accounting and Financial Management Division

5. 5 Applicable Laws & Regulations The Anti-Deficiency Act (31 U.S.C. 1341) Adequacy of Appropriations Act (41 U.S.C. 11) Preparation, Submission and Execution of the Budget (OMB Circular A-11) Federal Acquisition Regulation (FAR) Subpart 32.7 Applicable Agency Guidance

6. 6 The Problem The practice of incrementally funding our Lightning Data contracts is placing NWS at risk of violating federal statutes. It is also preventing us from paying the contractor in a timely manner.

7. 7 Why Is Incremental Funding A Problem? While ample guidance exists for the incremental funding of cost-type contracts, there is no specific statutory, regulatory, or agency guidance authorizing the application of this budgetary practice to Fixed Price contracts.

8. 8 What Does the Law Say? The Anti-Deficiency Act (ADA) tells us that: “An officer or employee may not make or authorize an obligation or expenditure that exceeds an amount available in an appropriation or fund.”

9. 9 What Does the Law Say? The Adequacy of Appropriations Act tells us that: “No contract or purchase on behalf of the United States shall be made, unless the same is authorized by law or is under an appropriation adequate to its fulfillment.”

10. 10 What Does the FAR Say? FAR Subpart 32.702 tells us that: Before executing any contract, the Contracting Officer shall – Obtain written assurance from responsible fiscal authority that adequate funds are available or Expressly condition the contract upon availability of funds in accordance with FAR 32.703-2 (Only for Operations and Maintenance, Continuing Services and non-stock funded Supplies, which are necessary for normal operations, and for which Congress has consistently appropriated funds).

11. 11 SO HOW DO WE FUND OUR LIGHTNING DATA CONTRACTS AND STAY WITHIN OUR BUDGETARY CONSTRAINTS? 1.Plan ahead. Send NWS AD your FULLY FUNDED Procurement Request before your current Contract/Delivery Order expires. 2.Ensure that your Budget Office programs all of your Lightning Data Contract funding for NWS obligation early in the new FY.

12. 12 - SO WHAT IF I CAN’T GET ALL OF MY AGENCY’S LDP FUNDING AT ONCE?  Fund “Stand-Alone Stages” of the contract or project. Project Managers should request NWS AD procure Lightning Data for their agency for just that time period that they have $$ for. We can procure the project in smaller “pieces”, depending on funds availability. Additional “pieces”, comprising the remainder of the performance period, can be included in the contract as options, and funded later, if funds become available. Employing this technique, we are fully funding each segment, as funds become available to us.

13. 13 A “STAND-ALONE STAGE” IS: A component of a project that: Provides information which allows for planning, design, and assessment of costs, benefits, and risks of a potential acquisition OR Results in a usable asset for which the benefits exceed the costs even if no further funding is provided

14. 14 When is Incremental Funding OK?  R&D  High Technology Acquisitions  Program Funded Incrementally by Congress  Hazardous/Toxic Waste Remediation  Multi-Year Contracting  Cost-Type Contracts

15. 15 RECOMMENDATIONS Our current practice of incrementally funding our fixed price Lightning Data contract and Delivery Orders places us at risk of violating the Anti-Deficiency Act. To avoid this, and still acquire the services we need, we must plan ahead, and award contracts and Delivery Orders which obligate only those funds which are made available to us. The contractor CANNOT be required to provide data unless they have been awarded a Delivery Order for it. NWS AD will no longer write these D.O.s without funding from the agencies who will be receiving the data. We should consider re-writing the Interagency Agreements between NOAA/NWS and the other Government Agencies to clarify our funding requirements. We should seek additional obligation authority to fully fund acquisitions which cannot reasonably be subdivided into smaller stand-alone stages.