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We currently have an IDIQ contract in which task orders are placed to provide intelligence analytical services to support the troops outside the U.S.. The contract provides analytical support from analysts based in the U.S. Now, we need to send analysts out of the U.S. to perform the same work. The IDIQ SOO does not cover analysts serving outside the U.S.

Do you consider this change out of scope?

Is that clearer?

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Guest Vern Edwards

For pete's sake, clarify what you want to change -- from what to what? What is the requirement now? What do you want it to be?

By the way, you already went beyond scope when you increased the IDIQ "ceiling" by which I assume you mean the maximum quantity or amount.

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We currently have an IDIQ contract in which task orders are placed to provide intelligence analytical services to support the troops outside the U.S.. The contract provides analytical support from analysts based in the U.S. Now, we need to send analysts out of the U.S. to perform the same work. The IDIQ SOO does not cover analysts serving outside the U.S.

Do you consider this change out of scope?

Is that clearer?

Does the contract contain either FAR 52.243-1 Alt I or 52.243-2 Alt I? If so, read the appropriate clause and see if that helps.

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Yes, 52.243-2 Alt I, CHANGES-COST REIMBURSEMENT is included.

Sorry Vern. The current requirement is to provide intelligence services to the warfighter. That requirement will NOT change. The only change is the location of the analyst providing the service. Currently, the location is in the U.S. The change is to send analysts to Afghanistan to perform the same work.

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Guest Vern Edwards

The changes clause for service contracts expressly allows the CO to change the place of performance, but setting all other conditions aside for simplicity's sake, a change from the U.S. to Afghanistan is a pretty bid change. Not only is the distance of the change very great, but the differences in the natures of the two locations is very great. I did a quick look for cases in which a change of location was challenged as being out of scope and didn't find any.

I think I'm inclined to go along with your CO in this case and say that the change is out of scope. Of course, there are things you can do. Maybe the contractor will agree to go along.

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Agree with Vern. Literal coverage by the Changes clause is probably not enough to allow a unilaterally directed change. Is the contractor amenable to the change? If so, you already have legal and the competition advocate on board, and as long as you understand the cost impact, go bilateral.

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I take the contrary view and am inclined to say the change is within scope. The Changes clause permits the contracting officer to make changes witin the general scope of the contract to the place of performance. The latter requirement, i.e., place of performance is clearly satisfied by a change from the U.S. to Afghanistan. That leaves the question of whether the change is within the general scope of the contract. SSKO said the services rendered are "intelligence services for the warfighter." To me, a knowledgeable contractor in this line of business could anticipate that the place where these services are performed could be changed to a location where they could be performed more effectively and be of more use to the "warfighter." That place would be where the "warfighter" is located and can exploit the "intelligence services" in a more timely fashion. The fact that the SOO did not mention a possible change is not determinative. To me the important thing is the nature of the services being rendered. However, as Vern noted this is an open question as there does not appear to be any board or court decision on whether there are limits on the govenrment's ability to make changes in the place of performance.

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Disagree with retread. Changing place of performance from a safe CONUS location to a war zone sounds like a cardinal change and is so drastic that a reasonable person would consider it outside the general scope, imho.

If the contractor declined to perform at the new location and this went to court, and the contractor said, "I didn't sign up to go to a war zone," who would think the contractor is unreasonable or noncompliant with the Changes clause?
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That sounds like the argument that several National Guard and Reserve troops and some state governors made when NG and Reserve units were activated to go to the desert for Desert Storm. It didn't work for them, and I don't think it would work for the contractor in this situation, but it might in some others. Like Vern noted, this is a fertile area for debate, but since there are no decisions on point, all we can do is voice opinions.

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That sounds like the argument that several National Guard and Reserve troops and some state governors made when NG and Reserve units were activated to go to the desert for Desert Storm. It didn't work for them, and I don't think it would work for the contractor in this situation, but it might in some others. Like Vern noted, this is a fertile area for debate, but since there are no decisions on point, all we can do is voice opinions.

The contractor, unlike the Guard and Reserve, is not part of the armed services of our great nation, only a contractor, and cannot reasonably be expected to go to war in the way that the Guard and Reserve can. The analogy fails.

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Since you are using a J&A anyway for this service why not just negotiate a new sole source IDIQ? Usually all the pre-deployment, travel, security, life support, medical and other costs involved in deploying personnel to the Afghanistan requires extreme negotiation wether it is a mod or a new contract.

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That sounds like the argument that several National Guard and Reserve troops and some state governors made when NG and Reserve units were activated to go to the desert for Desert Storm. It didn't work for them, and I don't think it would work for the contractor in this situation, but it might in some others. Like Vern noted, this is a fertile area for debate, but since there are no decisions on point, all we can do is voice opinions.
I'm not sure if that is an apples to apples analogy. The guard troops, unlike a contractor, have trained for hostile environments. The contractor, in this situation, could very well be able to perform this requirement CONUS but not have the requisite capabilities to perform the operation OCONUS, and may not of proposed on the requirement if that was known up front. I would think it is a big leap to make the assumption that since the contractor has the ability to perform the service CONUS that they are able to perform OCONUS in theatre. You would also be getting into whether you are working in a forward zone or not, whether the contractor personnel would be required to have arms, etc. There are many more things to take into consideration when making the assumption of CONUS vs. in-theatre than just a pure location standpoint.
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  • 3 years later...

Have recently run into a similar situation. Contract is for a week's services per option. Looking at GSA, several vendors make statements about "overseas differentials" or "OCONUS additional charges may apply."

Northrop Grumman says: Overseas allowances will be negotiated on an individual task order basis. This should be proposed in accordance with the U.S. Department of State Standardized Regulation [web link to state.gov] as an ODC non schedule item and should be identified as such in our task order proposals.

Another vendor gtid.com says in their GSA docs:The Department of State’s Standardized Regulations (DSSR) provides the regulations governing allowances, differentials (i.e. Hardship Post and/or Danger Pay) and definitions for all designated areas for all U.S. Government civilian employees. The DSSR provides for additional compensation for service in foreign locations where conditions of environment differ so substantially from conditions of environment in the continental U.S. that additional compensation is warranted and necessary as a recruitment or retention incentive. For U.S. Government civilian employees, hired in the United States, these are cumulative with a maximum of 35 percent each over the basic pay. (The cumulative maximum differential is 70 percent over basic pay, for an overall compensation of 170 percent of base pay.

So it seems like companies realize OCONUS costs more and they have to charge more because they have to pay employees more to go there. But does the government realize this? I've heard the argument that the government does not want to pay for travel time. Yet they give their employees time for travel, e.g. travel from CONUS to past the international dateline is equal to 2 TDY per Army regulations.

It's not just the additional travel expenses that make OCONUS more costly. OCONUS requires better planning and logistics, especially short-term. And the jet lag can be nasty.

So, my question - Has anyone had to justify additional short-term service assignment costs OCONUS - especially if the government has tried to pay you zero extra for going there?

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Why do you need people overseas now, and did not before? What can they do over there which they could not do in the CONUS?

You may have been told that the nature of the work has not changed, but I would be skeptical. I suspect the contractor's personnel will be doing different things over there, I would try to find out what those things are . . .

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For the analyst role, I think your question is spot on... and thank you for asking it!!

However, the nature of part of the work for us is similar. The prepation, planning and logistics is much more complex. Our services are short assignment - less than a month.

However, I think I found a question to ask if OCONUS is said to be in scope for a contract. There is a requirement

Federally funded travelers to use United States air carrier service for all air travel and cargo transportation services funded by the United States Government. One exception is the countries with Open Skies agreements (Switzerland has one for example) - let's leave those out for now. It is sometimes called "Fly America Act."

If the contractor is subject to FAR 31.205-46 for travel and per diem per contract, that FAR 31 section does not incorporate JTR and FTR regulations. So if the contract does not already include Subpart 47.4-Air Transportation by U.S.-Flag Carriers

wouldn't this clause have to be added to the contract for OCONUS?

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Jane, what clause? You did not identify a clause in your post. Also, I don't understand the significance of your statement that 31.205-46 does not incorporate the JTR or the FTR. While the cost principle does not incorporate those regulations in total, the cost principle does incorporate the provisions from those regulations dealing with per diem for designated locations. FAR 31.205-46 also incorporates the DSSR provisions dealing with per diem in designated areas. However, neither that cost principle or any other FAR section specifically addresses foreign service pay enhancements. Thus, from a FAR perspective, the DSSR provisions dealing with post differential pay, hazard pay, etc., do not apply directly to contractors. Instead, the government will only reimburse the contractor for allowable and allocable costs that are reasonable as described in 31.201-3.

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Retreadfed-apologies! Let me restate:

The clause is 52.247-63, Preference for U.S.-Flag Air Carriers. Specific direction is given here:

47.405 Contract Clause

The contracting officer shall insert the clause at 52.247-63, Preference for U.S.-Flag Air Carriers, in solicitations and contracts whenever it is possible that U.S. Government-financed international air transportation of personnel (and their personal effects) or property will occur in the performance of the contract. This clause does not apply to contracts awarded using the simplified acquisition procedures in Part 13 or contracts for commercial items (see Part 12).

BLOCKEDwww.acquisition.gov/sites/default/files/current/far/html/Subpart%2047_4.htmlBLOCKED

On your question regarding incorporation of JTR and FTR Regulations themselves and not just per diem numbers... this is important because JTR and FTR include the Fly America Act. If the regs were really incorporated into FAR 31.205-46, the Fly America Act would be automatically included as soon as FAR 31.205-46 was included.

Here is the link for FAR 31.205-46 http://www.gpo.gov/fdsys/pkg/CFR-2010-title48-vol1/pdf/CFR-2010-title48-vol1-sec31-205-46.pdf

Page 676 says

(4) Subparagraphs (a)(2) and (a)(3) of this subsection do not incorporate the regulations cited in subdivisions (a)(2)(i), (ii), and (iii) of this subsection in their entirety. Only the maximum per diem rates, the definitions of lodging, meals, and incidental expenses, and the regulatory coverage dealing with special or unusual situations are incorporated herein.

Does that clarify?

Your comments very appreciated.

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Having the Fly America Act implemented in a contract clause (52.247-63) that is authorized for almost every contract type valued above the SAT provides for broader application of the Act than would result from inclusion in a cost principle. Remember, the cost principles do not govern costs that are recoverable under FFP contracts. Thus, if the Act were implemented in 31.205-46, it generally would not be given applicability in regard to those contracts.

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What I mean to say is that by not including the clause 52.247-63 in a contract "whenever it is possible that U.S. Government-financed international air transportation of personnel (and their personal effects) or property will occur in the performance of the contract"

- as FAR Subpart 47.405 Contract clause says should be done

then it bolsters the argument the contract was not intended to include OCONUS locations and those locations are out of scope. Otherwise, shouldn't the clause have been included?

The original poster was trying to make the argument that having an analyst go to IRAQ or Afhanistan (OCONUS) was not in the scope of the original contract - and not included in the original FFP pricing.

Your insights on what is recoverable in a situation with FFP pricing appreciated. I can understand on the travel expenses.... I would be interested in justifying the LOE for mobilization / deployment planning and/or using a different labor rate for a US-based person to go overseas on short assignments.

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