Local Travel Without Travel CLIN

[kostdiek]

We are in a situation on a subcontract where we only have a labor CLIN, but our performer has recently been required to travel locally between a few different Government buildings to do his job. We have been reimbursing this performer via the unallowable line on the contract. Is this permissible? Too late, I know, but I did not know this was going on. The bigger question is what regulation provides guidance applicable to this situation? If we provide "free" travel to the Government for a performer to do his duties, is that wrong, even though we are charging the contract via unallowable line?

What is the best remedy? Anything other than asking for a travel CLIN?

On another note, we have a contract with the state of Maryland that also might require the local travel in the future, and go figure, we do not have a travel CLIN. We are also a subcontractor on this work. Does anyone know what regulation governs this? I know this is a federal forum, so I understand if you do not want to discuss this one.

Thanks in advance for any insight. Please provide FAR and/or DFARS or other law references with your answers.

[MICHIGANKO]

Kostdiek -

There are a number of facts missing from your query which could impact the answer you may receive for this post. What is the prime contract type? What do you mean by "our performer has recently been required to travel locally between a few different Government buildings to do his job"? Was this not required before? Was there a modification to the terms of the contract? It's hard to tell if the travel you are providing is truly "free" without knowing the type and terms of the contract beyond the CLIN structure. Further, what is the contract structure between you and the prime? Absent some more facts, it would be difficult to point you in the right direction.

[FAR Fetched]

You need to find out what your Prime's contract considers local travel. Typically anything within 25 miles of a duty station or performance location is not reimbursable.

Again, that's 'typical' - I don't know your prime's contract or yours so it's really hard to say.

[kostdiek]

The prime contract and the subcontract are both T&M. There was not a mod to the terms of the contract or the scope of work. I believe it is within the scope of work for the performer to travel to different local locations because there are servers at a couple of different locations. His job within the scope is to fix the servers. It's not a new requirement exactly. It's just that for several months, the other servers did not have any issues, and now they do. It's a requirement that we did not fully think through during the bidding process.

The subcontract says the following. Note that it says it will reimburse non-local travel, but then it goes on to say that local travel is essentially the commute. It does not define local travel as travel between work locations during a work day. If they had not defined local travel in this strange way, it would be more clear.

B.3Supplies/Services and Prices

A. The Subcontractor’s T&M Labor Rates, shall be specified in potential Task Orders, shall include all

compensation due to Subcontractor for labor hour services to be rendered hereunder and include the costs

of fringe benefits, overhead, general and administrative expenses, profit or fee, except as specifically

authorized in accordance with paragraph 2 below.

B. The Buyer will reimburse Subcontractor’s actual costs incurred for non-local Travel and ODCs that are:

i) explicitly authorized and funded hereunder ii) allocable and allowable costs in accordance with FAR Part

31 cost principles, and iii) supported by adequate original documentation. No Fee/Profit shall be allowable on

ODCs/Travel.

1) Reimbursement shall be made for authorized actual expenses to include costs of

transportation, lodging, meals, and incidental expenses, along with such other reasonable and

necessary expenses related to the services as mutually agreed upon hereunder.

2) Authorized Air travel shall be reimbursed for coach-class accommodations unless no other

accommodations are available or such accommodations would require circuitous routing, travel

during unreasonable hours or the like. Subcontractor must secure advanced written approval from

Buyer for travel not specifically authorized hereunder.

Local travel, defined as travel between employees’ residence and assigned place of work, is not allowable.

Seems to me that we need to clarify with the prime, but that they are likely to say no even though this subcontract language (to me) is not clear.

Thanks for any thoughts.

[Beantown_Contracts]

RE: Local travel definition.

This does not exclude the employee from being reimbursed for local travel in excess of residence and regular place of work.

ie, whem traveling to a different work location, the employee may be reimbursed for the Excess miles only. Same applies if employee reports to regular workplace then must travel to a satellite location to make a repair. Note, a roundtrip from regular workplace to satellite location would be fully reimbursable, however, in line with situation noted above, if employee travels from regular workplace to satellite location to home, ONLY the miles in excess are reimbursable.

Bottom line, no part of a standard commute are reimbursable.

[kostdiek]

Beantown, Understand re definition. That's how I understand it as well. To follow-up on that... How do we go about getting reimbursed? Do we just ask the prime? What's our argument if they refuse?

Are we required to be reimbursed by any law or regulation?

[ji20874]

"How do we go about getting reimbursed? Do we just ask the prime?"

Yes.

"What's our argument if they refuse?"

Your argument has to come from within your subcontract, probably from within the B.3. clause.

"Are we required to be reimbursed by any law or regulation?"

No.

[Retreadfed]

ji, wouldn't you agree that if the contract calls for reimbursement of travel for service calls as described by beantown, then the law would require the prime to reimburse the sub? Compliance with contract terms is not a discretionary act on the part of a contracting party.

[ji20874]

Retreadfed,

Generally, I understand that contract disputes between a prime contractor and a subcontractor are matters of state law, not federal acquisition law or the Federal Acquisition Regulation -- that's the basis for my "No" answer. This is a matter for a civil lawsuit in a state court. And the rationale in the lawsuit is going to be driven by state law and the filing attorney's expertise and experience, not federal acquisition law or the Federal Acquisition Regulation.

If the subcontractor thinks the prime contractor breached the contract between them, then it has recourse under the state law governing that subcontract. But no prosecutor is going to file charges against the prime contractor for not paying the subcontractor, because there is no law that is being broken. Breaching a contract is not breaking a law. Here, based on my reading of the original posting, I'm not even sure there is a breach.