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Hello everyone.  The current COVID-19 pandemic is making air travel very difficult.  U.S.-flag and foreign flag air carriers are cancelling flights right and left which is making it difficult to demobilize people and get them home.  FAR 47.403-1(a) states, "If a U.S.-flag air carrier cannot provide the international air transportation needed or if the use of U.S.-flag air carrier service would not accomplish an agency’s mission, foreign-flag air carrier service may be deemed necessary."  My question is, what does the word "agency" mean as used in this sentence.  Does it mean the contractor or the government?

For example, an employee has a flight out of Dubai, UAE to London on a foreign flag air carrier without a codeshare but has a Fly America Act compliant flight from London to Chicago but there is only an hour and a half between when the traveler lands in Chicago and the next flight.  Right now with COVID-19 all travelers coming from overseas are being screened for the virus.  There's no way the poor traveler is going to make the connecting flight back home.  He could take a flight in the morning but he just wants to get back home after being gone for so long.  There's a direct flight from Dubai to Los Angeles on a foreign flag air carrier and a reasonable layover to make the connecting flight back home.  If there was no other exception to the Fly America Act compliant flight could we, the contractor, make the executive decision that the flight does not accomplish our mission of avoiding a COVID-19 infested London putting them at risk of infection and book the flight on the direct foreign flag air carrier?  Or do we have to go to contracting officer and get them to give us permission to book the foreign flag air carrier?

I'm trying to think outside the Fly America Act box to get people back to the States as quickly as possible without getting infected.  

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Does your contract include the clause at FAR 52.247-63, Preference for U.S.-Flag Air Carriers?  If so, you will find your answer there.

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6 minutes ago, ji20874 said:

Does your contract include the clause at FAR 52.247-63, Preference for U.S.-Flag Air Carriers?  If so, you will find your answer there.

Yes.  And it's a DoD contract so the US-EU Open Skies Agreement does not apply either. 

FAR 52.247-63 does not use the word agency.  It does point to FAR 47.403 for the exceptions where the word agency is used.  Will you please explain your answer?

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The clause at FAR 52.247-63 does not contain instructions for the Government; rather, it contains instructions for the contractor.  The contractor simply follows the instructions in the clause.  Really, it is that simple -- just do what the clause says.  Make your decision and justify why a U.S.-flag air carrier was not available or it was necessary to use a foreign-flag air carrier in the statement you attach to the voucher (or invoice).  The Government will agree or disagree after it reads the statement as part of the payments approval process.

You make the decision if an exception applies.  Drop all your emotion for the poor traveler (your words) and simply apply the text.  As I understand, here are the exceptions:

1. When a U.S. air carrier is not available.

2. When the use of a U.S. carrier service would extend the travel time by 24 hours or more.

3. When a U.S. carrier does not offer nonstop or direct service between origin and destination; and

.   (a) Increases the number of aircraft changes outside the United States by two or more;

.   (b) Extends travel time by at least six hours or more; or

.   (c) Requires a connecting time of four hours or more at an overseas interchange point.

4. Short Distance Travel - When the flight time from origin to destination is less than 3 hours and the use of a U.S. flag carrier doubles the time en-route.

Do any of these fit?  

.   If YES, justify it in your statement.

.   If NO, you can still use the foreign-flag air carrier for the sake of the poor traveler -- the cost will be deducted from the Government's payment to the contractor.

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The Scenario might well fit the exception. But ji is right.  Just follow the instructions in the clause to justify the carrier routing. 

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19 hours ago, UseTheFARLuke said:

FAR 52.247-63 does not use the word agency.  It does point to FAR 47.403 for the exceptions where the word agency is used. 

I think FAR 47.403-1(a) is poorly drafted.  Agencies contract to fulfill their mission.  Thus, to my mind, paragraph (a) is talking about fulfillment of the purpose of the contract.

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21 hours ago, UseTheFARLuke said:

I'm trying to think outside the Fly America Act box to get people back to the States as quickly as possible without getting infected.  

You don't need to think outside the box. The clause already provides enough "wiggle room" to accomplish what needs to be done. Just document why your decision is compliant.

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