As a COR, I have continued to advocate for CR travel CLINS based in part on two DAU answers. Question ID 113259 states that "FAR Part 16.301-2 (Cost Reimbursement Contracts Application) are suitable for use only when uncertainties involved in contract performance do not permit cost to be estimated with sufficient accuracy to use any type of FFP Contract." Question ID 114252 states "While it's true that commercial items (FAR Part 12 contracts) and orders off of GSA Schedules cannot employ a cost-reimbursement contract type, simply including a cost reimbursable line item when necessary (such as for travel) does not turn the overall contract...into a Cost-Reimbursable Contract."
Can you provide a consolidated response as to whether the inclusion of CR travel CLINS on a FFP Services (Commercial Item) Contract is permissible and by what authority or cites the KO can overcome the apparent prohibition in Part 12?
Congratulations!! You have asked a question that many have discussed, debated and even argued. See here for proof. And unfortunately the “prohibition” you refer to is not “apparent” it is real. The bottom of the reference offers some advice on how to estimate travel on a FFP CLIN, it seems like your contracting office is following this advice and interpreting the FAR correctly.
Some contracting offices have included CR CLINs for Travel on both commercial format contracts and when using simplified acquisition procedures. I’ll bet there are many solicitations on the GPE right now that have such a structure. In addition, GAO has decided bid protests where the solicitation contained such a structure and made no mention as to it being allowed or not (at least that I could find doing some quick research). However, that in and of itself does not make it right and the correct consensus is that Cost Reimbursable travel CLINS are not authorized on when using the commercial format contract (FAR 12). While trying to select/decide what “contract type” to report in the CAR to FPDS-NG is one thing. Just because the vast majority of effort/billing may be done against FFP CLINS, does not let us ignore the CR CLINS for purposes of determining the contract type. In other words, whenever you have a CR CLIN, you have a CR contract.
If you are looking for another solution than have travel be FFP, the following is provided:
When it comes to reimbursing contractor travel under government contracts, the primary reference is FAR 31.205-46. Note that this subpart refers to a number of regulations and resources including the Federal Travel Regulations and Joint Travel Regulations (DoD). They could be reviewed to the extent they apply to contractor travel. When it comes to establishing CLINS, the guidance for us is DFARS 204.7103 and the corresponding PGI.
As stated, FAR/DFARS 12/212 do not authorize a CR contract type when using the commercial format (i.e. FAR 12). However, FAR 12.207(b) and DFARS 212.207(b) authorizes the use of a Time and Material type contract when using the Commercial Contract Format (i.e. FAR 12). FAR 16.601 defines travel as an ODC (other direct cost), as does FAR 52.212-4 alternate 1 - (e)(3)(C). Note that the approval to use T&M is at the HCA level and requires a D&F. I would surmise that a contract with one T&M CLIN restricted to travel as an ODC and the rest of the effort being accomplished via FFP CLINS might go through the review and approval process easier… but I could be wrong.
Note: I normally try not to cite too many FAR/DFARS references when answering questions asked by CORs, but I was very impressed with the research you had already done on this question.
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