Is there a FAR reference I can use that address contractor labor when travelling on behalf of the government?
The FAR does not specifically address contractor labor during travel, i.e., there is nothing stating that the Government must pay for a contractor’s time during travel, but there is nothing stating that you may not pay for a contractor’s time during travel either. FAR 31.205-46 addresses travel costs, e.g., transportation, lodging, meals, and incidental expenses, but it does not address the contractor’s billable hours during travel. Since your Contracting Officer falls under the Department of State, I checked the Department of State Acquisition Regulation (DOSAR) at DOSAR Subpart 651.70. Like the FAR, the DOSAR is silent on paying contractors during travel. The regulations leave flexibility for Contracting Officers to structure an arrangement that is in the best interest of the Government; accordingly, when the question of contractor’s time during travel arises, some Contracting Officers ask why the Government should be paying for a contractor to “sit on a plane.”
Open full Question Details
This question should have been addressed in the contract. You need to take a look at Sections C, H, and I (which should contain the Statement of Work, Special Clauses, and Standard Clauses). I suspect that these sections are silent on the question of paying for contractor labor during travel (thus this disagreement between you and the Contracting Officer). You need to examine these sections to be sure. If any of these sections address contractor labor during travel, then the Government must abide by the terms of the contract.
If the contract is silent on the question of billable hours (as I suspect it is), then you have a problem to resolve. On one side, your contractor will hope to rely on certain language in the contract or certain Contract Line Item Numbers (CLINs) or both to show that there was an expectation that contractor labor during travel would be paid, i.e., there was a “meeting of the minds” among the contractor, the original Contracting Officer, and you (the program office). Your contractor will also point to history. His argument will likely be, “You have been paying this; therefore, we had a meeting of the minds – an understanding that the Government would pay for my labor during travel.” On the other side, if the contractor is able to make the case that all parties understood that the Government would pay contractor labor during travel, your Contracting Officer will need to show where paying for contractor labor during travel was illegal or improper (perhaps according to notes in the contract file left by his predecessor). If the three of you cannot come to an accord, then the contractor may need to absorb the cost (which is what the Contracting Officer wants) or file a claim under FAR 33. Again, check the contract. The Contracting Officer could resolve this issue quickly by providing a relevant and unambiguous reference (from the FAR, DOSAR, the contract, or other pertinent ruling) to support his decision; if he does, you and the contractor need to accept the decision.