Supplemental Guidance #1 TO APM 2011-04 “APPROPRIATI0NS LAW COMPLIANCE (ALC) REVIEWS”
– ISSUED AUGUST 20, 2012
Purpose: This supplemental guidance to Acquisition Policy Memorandum (APM) Number 2011-04, subject: Appropriations Law Compliance Reviews, issued on October 6. 2011, provides further clarification in the areas of 1) process for reviewing contract modifications and 2) supporting documentation (to include a review request form and a waiver request form).
Clarification to APM 2011-04, paragraph 2. Prospective Review of Designated Acquisitions: Covered Acquisitions:
The table below identifies final draft contract modifications that must be submitted for Appropriation Law Compliance (ALC) reviews. This applies whether or not the initial contract or solicitation was reviewed (i.e., if the solicitation/contract was issued before the APM’s effective date of October 6, 2011), and whether or not the contract is for severable or non-severable services.
Add work and meet Operating Division (OPDIV) specific review threshold
Add funds and meet OPDIV specific review threshold
Extend period of performance and meet OPDIV specific review threshold
Modification (regardless of value) that causes the total contract value to exceed OPDIV specific review threshold
Modification (regardless of value and product service code) to contracts that were identified with Anti-Deficiency Act violations in the Fiscal Year 2010 Financial Statement Audit (Attachment 3)
After a final draft solicitation or a draft modification has been reviewed and has received concurrence from the Office of Grants and Acquisition Policy and Accountability (OGAPA), but the funding approach is subsequently changed, the draft must be submitted for review and receive concurrence by OGAPA and OGC. The draft cannot be finalized until OGAPA and OGC concurrence is granted, or a waiver is granted.
Any modifications submitted for either ALC review or waiver request that are against contracts that are found to be improperly structured or funded may be rejected by OGAPA or OGC and require resubmission to both OGAPA and OGC after the base contract has been appropriately adjusted.
Clarification to APM 2011-04, paragraph 2. Prospective Review of Designated Acquisitions: Review Requirements and Process:
The following bullets shall be inserted as the first three bullets of the existing list.
- Cover page -- A review request form shall be used as the cover page for all review requests (Attachment 1 – HHS OGAPA/Office General Counsel (OGC) Review Request Form). Please note that the form should be used to request an ALC Review, legal sufficiency review or a waiver.
Based upon the type of required review, the following documents shall accompany the completed review request form:
- Draft Solicitation -- Entire requisition package; Acquisition Plan (AP) or other acquisition request document (HHSAR 307.7101); final draft solicitation; for a new order, the umbrella instrument, if awarded by the OPDIV; and, if multi-year contracting procedures will be used (FAR 17.1/HHSAR 317.1), the Determination and Finding (D&F) required by FAR 17.105-1(a). Include as part of the review request form, a brief narrative describing the nature of the services to be acquired, the contract structure, and the manner in which you intend to fund the contract over its performance period, including options, if applicable, or—
- Draft Modification: As applicable, the funding document (e.g., requisition) and AP or other acquisition request document; draft modification; contract or order being modified (subsequent modifications that would not require review under APM 2011-04 need not be provided); and, if multi-year contracting procedures will be used (FAR 17.1/HHSAR 317.1), the D&F required by FAR 17.105-1(a). Include as part of the review request, a brief narrative describing the purpose of the modification, the nature of the services to be acquired, and the manner in which you intend to fund the modification.
Insert the following as an additional paragraph 5 to APM 2011-04, Waiver Request Process: Waivers can be requested only for modifications and shall be submitted using a waiver request form (Attachment 2 – ALC Review Waiver Request Form). The waiver process is only applicable to ALC Reviews conducted by OGAPA/OGC. Waiver requests will be processed within 7 business days. Waiver requests must be strongly justified and based on substantial reasons of timing (e.g., the proposed modification modifies the same contract as an identical modification that received OGAPA’s concurrence within the last six months) and/or identical or similar nature (e.g., the concurrent modification of identical multiple award contracts). The following documentation must be submitted with waiver requests:
- Waiver via Timing Exception -- HHS OGAPA/OGC Review Request Form; entire package for proposed modification; and OGAPA/OGC’s review of an identical modification of the same contract.
- Waiver via Identical or Similar Nature Exception -- HHS OGAPA/OGC Review Request Form; entire package for at least one of the proposed modifications; and a list of other identical/similar modifications with contract/modification number, period of performance, estimated value, estimated dollar amount and the fiscal year of funding to be obligated, contract type, and severability.