Fly America Act

[Fara Fasat]

FAR Subpart 47.4 and the clause at 52.247-63 implement the Fly America Act. Does it apply to the contractor's shipment of the supplies that it is delivering under a supply contract, or does it only apply to a contract for the transportation of personnel, their property, and the property of the government?

I believe the latter, but a CO is questionning why we haven't included it in our subcontract terms under supply contracts. The CO has also suggested that if we weren't using US air carriers for our shipments, we could be subject to disallowance of the costs, and a possible CAS 405 violation.

I thought it was clear, but the clause opens up an ambiguity by stating: "(c ) If available, the Contractor, in performing work under this contract, shall use U.S.-flag carriers for international air transportation of personnel (and their personal effects) or property." More simply, the contractor shall use US-flag carriers to transport property. Is "property" the goods being delivered under the contract, and does this clause apply to supply contracts?

[Guest carl r culham]

With regard to your question should FAR 12.504(a)(12) be considered?

[Fara Fasat]

Not really. That just says it doesn't apply to contacts for commercial items. I'm just asking whether the "U.S. Government-financed international air transportation of ... property" covered by FAR Subpart 47.4 includes the transportation of parts and end items in a supply contract.

[jeffh]

What I was able to find on this question:

CHAPTER 6. USE OF U.S.-FLAG CARRIERS

Cargo Preference Laws

The use of U.S.-flag vessels by officers and employees of the United States for the

transportation of their personal effects and use of U.S.-flag certified air carriers for any

Government-financed movement of freight by air is required by statute (46 U.S.C. App.

Sec.1241 and 49 U.S.C. 40118) when such vessels and air carriers are available.

Compliance with these statutes is required whether the United States pays the

transportation charges to the direct or through reimbursement of an individual or other

entity.

Taken from:

http://www.fss.gsa.gov/transtrav/gblHandbook.pdf

Hope this is helpful

[Guest carl r culham]

And here is what I found which is the original Act, then the wording of the US Code as currently amended. Interesting to note how the word ?and? and ?or? have been manipulated even in the FAR. Makes me wonder if it is not a good question for an advance decision of GAO?

The original Act found here ? http://www.llsdc.org/attachments/wysiwyg/544/PL093-623.pdf

"TRANSPORTATION OF GOVERNMENT-FINANCED PASSENGERS AND

PROPERTY

49 USC 1517. "SEc. 1117. Whenever any executive department or other agency or

instrumentality of the United States shall procure, contract for, or

otherwise obtain for its own account or in furtherance of the purposes

or pursuant to the terms of any contract, agreement, or other

special arrangement made or entered into under which payment is

made by the United States or payment is made from funds appropriated,

owned, controlled, granted, or conditionally granted or utilized

by or otherwise established for the account of the United States,

or shall furnish to or for the account of any foreign nation, or any

international agency, or other organization, of whatever nationality,

without provisions for reimbursement, any transportation of persons

(and their personal effects) or property by air between a place in the

United States and a place outside thereof or between two places both

of which are outside the United States, the appropriate agency or

agencies shall take such steps as may be necessary to assure that such

transportation is provided by air carriers holding certificates under

49 USC 1371. section 401 of this Act to the extent authorized by such certificates or

by regulations or exemption of the Civil Aeronautics Board and to

the extent service by such carriers is available. The Comptroller General

of the United States shall disallow any expenditure from appropriated

funds for payment for such personnel or cargo transportation

on an air carrier not holding a certificate under section 401 of this

Act in the absence of satisfactory proof of the necessity therefor.

Nothing in this section shall prevent the application to such traffic

of the antidiscrimination provisions of this Act.".

The US Code as amended and current as of today found here http://www4.law.cornell.edu/uscode/uscode4...8----000-.html?

40118. Government-financed air transportation

(a) Transportation by Air Carriers Holding Certificates.? A department, agency, or instrumentality of the United States Government shall take necessary steps to ensure that the transportation of passengers and property by air is provided by an air carrier holding a certificate under section 41102 of this title if?

(1) the department, agency, or instrumentality?

(A) obtains the transportation for itself or in carrying out an arrangement under which payment is made by the Government or payment is made from amounts provided for the use of the Government; or

( provides the transportation to or for a foreign country or international or other organization without reimbursement;

(2) the transportation is authorized by the certificate or by regulation or exemption of the Secretary of Transportation; and

(3) the air carrier is?

(A) available, if the transportation is between a place in the United States and a place outside the United States; or

( reasonably available, if the transportation is between 2 places outside the United States.

[Fara Fasat]

The question may sound nit-picking, but it's a big deal if a contractor and all subs (since it's a mandatory flow-down clause) are required to use US air carriers for transportation under a supply contract. The Cargo Preference Act and Subpart 47.5 are different and pretty clearly apply to supply contracts. Subpart 47.4 is not so clear.

It's the wording in Subpart 47.4 and in the clause (52.247-63) that creates ambiguity. In all relevant places, it uses the same phrasing: "international transportation of personnel ... or property." This all started with an ACO who asked about our compliance with this clause, so at least some in the government believe it applies to transportation under supply contracts.