Government Contracting - FAR Supplements - TRANSFARS - Transportation Command

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FAR SUPPLEMENTS - COMPLIMENTARY WEBINAR SERIES – 2022
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Webinar Wednesday - Schedule At A Glance
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1/12/22 – FAR
1/19/22 – FAR CAS
1/26/22 – DOD
2/2/22 – DPGI
2/9/22 – ARMY
2/16/22 – AIR FORCE
2/23/22 – DISA
3/2/22 – DLA
3/9/22 – USMC
3/16/22 - SPECIAL OPS
3/23/22 -TRANS COMMAND
3/30/22 – AGRICULTURE
4/6/22 – AIDAR
4/13/22 – DOC
4/20/22 – DOE
4/27/22 – DOI
5/4/22 – DOL
5/11/22 – DOS
5/18/22 – DOT (Treasury)
5/25/22 – DOEd
6/1/22 – EPA
6/8/22 – FEHB
6/15/22 – GSA
6/22/22 – HHS
6/29/22 – DHS
7/6/22 – HUD
7/13/22 – BBG
7/20/22 – DOJ
7/27/22 – OPM
8/3/22 – NASA
8/10/22 – NRC
8/17/22 – DOT
(Transportation)
8/24/22 – VA

FRIDAY PLAYBOOKS - Schedule At A Glance
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1/12/22 – N/A
1/19/22 – N/A
1/28/22 – DOD
2/2/22 – N/A
2/11/22 – ARMY
2/18/22 – AIR FORCE
2/25/22 – DISA
3/4/22 – DLA
3/11/22 – USMC-NAVY
3/18/22 - SPECIAL OPS
3/25/22 -TRANS COMMAND
4/1/22 – AGRICULTURE
4/8/22 – AIDAR
4/15/22 – DOC
4/22/22 – DOE
4/29/22 – DOI
5/6/22 – DOL
5/13/22 – DOS
5/20/22 – DOT (Treasury)
5/27/22 – DOEd
6/3/22 – EPA
6/10/22 – FEHB
6/17/22 – GSA
6/24/22 – HHS
7/1/22 – DHS
7/8/22 – HUD
7/15/22 – BBG
7/22/22 – DOJ
7/29/22 – OPM
8/5/22 – NASA
8/12/22 – NRC
8/19/22 – DOT
(Transportation)
8/26/22 – VA

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2022 – FAR DEPARTMENT SUPPLEMENT –
TRANSFARS –TRANSPORTATION COMMAND
Date: Wednesday, March 23, 2022
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TRANSPORTATION COMMAND
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SPEAKER
INSERT YOUR
LOGO HERE
2022 – FAR DEPARTMENT SUPPLEMENT – TRANSFARS –TRANSPORTATION COMMAND
MEET OUR SPEAKER
Jason Moy
Cordatis LLP
jmoy@cordatislaw.com
(202) 342-2550
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Agenda
Background of USTRANSCOM
Market Information
TRANSFARS
Bills of Lading
Global Household Goods Contract
Some Thoughts
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US Transportation Command Background
Mission Statement:
“USTRANSCOM conducts globally integrated mobility operations, leads the broader Joint Deployment and
Distribution Enterprise, and provides enabling capabilities in order to project and sustain the Joint Force in
support of national objectives.”
https://www.ustranscom.mil/
As stated in GAO Opinions:
“The mission of USTRANSCOM is to provide air, land, and sea transportation for the DOD, both in peace and
wartime.” CEdge Software Consultants, LLC, B-418128.7, Aug. 4, 2020, 2020 CPD ¶ 262.
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USTRANSCOM is a Functional Unified Combatant Command
1 of 11 Combatant Commands 10 U.S.C. §§ 161-168
Functional and Not Geographic
A Combatant Command is a joint military command of the United States Department of Defense that is
composed of units from two or more service branches of the United States Armed Forces and conducts broad
and continuing missions.
Transportation is its functional basis – Worldwide Authority
USTRANSCOM may be represented at GAO by another agency such as the Air Force.
See Cooper/Ports America, LLC, B-419000.3, Feb. 18, 2021, 2021 CPD ¶ 327;
CEdge Software Consultants, LLC, B-418128.2, et. al., March 19, 2020, 2020 CPD ¶ 127.
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Recent Track Record at GAO
Past Two Years USTRANSCOM has appeared in ten (10) GAO opinions (not counting one request for costs)
Sustain Rate of 50%
GAO average sustain rate for the past Five FYs is 15%
The question is why such a high sustain rate?
Is it related to a TRANSFARS provision?
Or Something Else?
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MARKET INFORMATION
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Lots of Business
$3.8 Billion in Transportation (majority in passenger air travel)
$269 Million for Professional, Scientific, and Technical Services
$19.5 Million in Other Services (Repair and Maintenance)
$6 Million in Information Services
$3 Million In Manufacturing (mostly electronic computer manufacturing)
Source: https://www.ustranscom.mil/dbw/docs/Award_DetailByNAICS.pdf
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Some USTRANSCOM Programs
USTRANSCOM administers the Civil Reserve Air Fleet (CRAF) and Voluntary Intermodal Sealift Agreement
(VISA)
Under the CRAF program, United States flagged air carriers voluntarily agree to provide stand-by commitments
to support mobilization. As an incentive to participate in the CRAF program, CRAF participants are eligible for
contracts that satisfy the DoD's peacetime airlift requirements.
The VISA program is similar to the CRAF program, but is open to United States flagged water carriers.
See UTI, United States, LLC, ASBCA No. 60188, 18-1 BCA ¶ 36933 (Dec. 12, 2017);
https://www.ustranscom.mil/imp/index.cfm#SURF
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TRANSFARS
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TRANSFARS § 5501.101 – Purpose
“Provides command acquisition policies and procedures and supplements the FAR and DFARs”
TRANSFARS § 5501.103 – Authority
“The TRANSFARS applies to all USTRANSCOM contracting officers that receive contracting authority from
USTRANSCOM, Director of Acquisition (TCAQ).”
TRANSFARS 5501.301 – Policy
“TCAQ maintains operating instructions that further explain policies and procedures for subject matters that are
internal to the agency and do not have a significant impact on contractors or offerors. These instructions will be
kept to a minimum and are approved by TCAQ.”
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USTRANSCOM is assigned Chapter 55 of Title 48 of the CFR. TRANSFARS § 5501.303
However, as seen at: https://www.ecfr.gov/current/title-48 - There is no Chapter 55.
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TRANSFAR PART 5547 - TRANSPORTATION
“The following clauses and provisions are prescribed for use solely by the United States Transportation
Command (USTRANSCOM) and its components for airlift transportation contracts.” TRANSFARS § 5547.4
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Air Safety Clause 5552.247-9000
Two Big Takeaways:
1) Comply with “generally accepted standards of airmanship, training, and maintenance practices and
procedures,” “Department of Defense (DOD) quality and safety requirements as described in 32 CFR Part
861, Section 861.4,” and “all [] applicable statutes, tenders of service, and contract terms as such may affect
flight safety, as well as with all applicable Federal Aviation Administration (FAA) Regulations, Airworthiness
Directives, Orders, rules, and standards promulgated under the Federal Aviation Act of 1958, as amended.”
2) Maintain a clean and orderly aircraft.
Failure to do so may result in suspension, temporary nonuse status. That in turn, will be treated as “failure to
maintain authorization to engage in air transportation under the clause of the contract 5552.247-9001”
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Requirement For Authorization To Engage In Air Transportation 5552.247.9001
This contract is conditioned upon the Contractor being an air carrier and holding:
• a Certificate of Public Convenience and Necessity issued under Section 401 of the Federal Aviation
Act
• or otherwise authorized by the Department of Transportation (DOT) to engage in direct air
transportation services, holding an Air Carrier's Operating Certificate issued by the FAA under Part
121 of the Federal Aviation Regulations (14 CFR 121) for airlift operated by the offeror, and
participating in the CRAF, if applicable.
Furthermore, the Contractor shall not be in a suspension or temporary nonuse status in accordance with
clause 5552.247-9000, AIR SAFETY.
Failure to maintain the appropriate licensure will allow the CO to elect “any one or a combination of the
following courses of action: 1) Suspension, 2) Exercise the Government’s rights under 5552.247.9002, 3)
Termination, or 4) Cancellation
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Requirement For Authorization To Engage In Air Transportation 5552.247.9001
Failure to maintain the appropriate licensure allows the CO to elect “any one or a combination of the
following courses of action:”
1) Suspension of the contractor with a unilateral modification reducing the governments obligation;
• The clause states this is not a termination within the meaning of FAR Clause 52.249-2
2) Exercise the Government’s rights under 5552.247.9002 (Contractor Failure to Provide Services);
3) Termination for Default; or
4) Cancellation by issuing a unilateral modification
• The clause states this cancellation is not a termination for convenience pursuant to FAR Clause
52.249-2 and neither party will be liable to the other party for costs incurred for such cancellation.
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Contractor's Failure to Provide Service 5552.247-9002
• The “basic clause” is for award of international charter airlift transportation as opposed to domestic
(covered in alternatives) See TRANSFARS 5547.4-100(c)(1)
• Substitute Service: “This term, as used herein, applies to the substitution of an aircraft to replace
contractor's aircraft, which is unable to proceed from the departure station or from any en route station
short of destination in accordance with schedules established pursuant to this contract.”
• Note the clause has certain time limits for certain types of flights (i.e. within 16 hours (passenger or
mixed), 4 hours (passenger with no holding facilities), or 24 hours (cargo))
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Substitute Service Continued:
[T]he government may:
(1) Cancel the requirement;
• With a unilateral modification that may affect costs paid to the contractor
(2) Contractor acquired substitute service “within such additional time as the contracting officer may allow;”
• The contractor would be responsible for all costs involved in the transportation of the substitute
aircraft
(3) Government acquires substitute service from commercial sources; or
• Government shall “deduct” from the guarantee and charge the contractor the amount it paid in excess
of the contract price
(4) Reschedule and fly on DOD owned and operated aircraft.
• Government shall “deduct” from the guarantee and charge the contractor the amount it paid in excess
of the contract price
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Substitute Service Continued:
“(d) The contracting officer, in making his decisions and selections for substitute service, will use his
discretion in such a manner as to mitigate contractor's liability for excess costs when reasonably possible.
However, military needs and urgency will be the prime consideration in the exercise of this discretion.”
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Requirement for Carriers to Participate in the Civil Reserve Air Fleet (CRAF) and Maintain Good Standing
5552.247-9003
“This contract is conditioned upon the Contractor (if the contractor is a team arrangement, applies to each
team member) being an approved Department of Defense approved carrier not in a suspended non-use
status (carrier in good standing) participating in the Civil Reserve Air Fleet (CRAF) throughout the
performance of this contract. The contractor shall be a U.S. registered air carrier operating under Federal
Aviation Regulations, Part 121, and possessing a current certificate issued by the FAA pursuant to Federal
Aviation Regulations, Part 121”
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USTRANSCOM Task and Delivery Order Ombudsman TRANSFARS 5552.216-9003
As prescribed in 5516.506, insert a clause substantially the same as the following in all task order
solicitations and contracts:
• The ombudsman is an independent official designated to review contractor complaints and to ensure
contractors are afforded a fair opportunity to be considered, consistent with the procedures in the
contract.
• Consulting the ombudsman does not relieve the contractor from performance requirements in the
contract, nor alter or postpone any timelines for any other processes.
• Interested parties should first address their concerns, issues, disagreements, and/or
recommendations to the contracting officer for resolution.
[Note – This section is not found on the TRANSFARS on Acquisition.gov, but found in recent USTRANSCOM
solicitations] J S C H AU S & AS S O C – WAS H I N G TO N D C
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BILLS OF LADING
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The FAR and TRANSFAR do not apply to bills of ladings
We do not possess jurisdiction over this appeal because any contracts are subject to the ICA/Transportation
Act. There are several mechanisms the government may use to acquire transportation services, including
negotiated contracts or bills of lading. Both the Federal Acquisition Regulation (FAR) and our precedent draw
a sharp distinction between acquisitions using negotiated contracts and acquisitions using transportation
forms, such as bills of lading. That distinction is significant because the FAR applies to acquisitions
using negotiated contracts, while the ICA/Transportation Act applies to acquisitions using bills of
lading.
U TI, United States, LLC, ASBCA No. 60188, 18-1 BCA ¶ 36933 (Dec. 12, 2017) (citations omitted)
(emphasis added)
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GLOBAL HOUSEHOLD GOODS CONTRACT
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One household goods contract to rule them all!
$6.2 Billion Contract under the initial five years (with the potential to be an $18 Billion Contract over nine
years)
Currently 325,000 separate moves per year, 40% outside the continental United States
USTRANSCOM wants “a complete door-to-door global household goods relocation transportation and
warehouse services” contract.
Under the current program there is more than 900 commercial companies that move HHGs.
The idea is to streamline moves and make a better customer experience.
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American Roll-on Roll-off Carrier Group, Inc. (ARC) originally won the award and HomeSafe Alliance (KBR
and Tier One Relocation JV) protested the award. One ground concerned the responsibility of ARC.
USTRANSCOM took corrective action on or about June 9, 2020.
After revaluation, USTRANSCOM selected ARC again on June 29, 2020. A second protest ensued.
GAO sustained the protest finding multiple issues to include:
1)Unresolved inconsistency in the CO’s second responsibility determination of ARC
2)Misleading discussions concerning price
3)Agencies failure to maintain record of oral presentations and the agency’s conduct of those oral
presentations
4)Disparate evaluation of technical capability proposals
5)Flawed best value trade off analysis
See HomeSafe Alliance, LLC, B-418266.5; et. al., Oct. 21, 2020, 2020 CPD ¶ 350, and Connected Global Solutions, LLC, B-418266.4; B-418266.7, Oct. 21, 2020, 2020
CPD ¶ 349.
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After the sustained protest at GAO, USTRANSCOM reevaluated and awarded the contract to HomeSafe on Nov.
4, 2021.
https://www.defense.gov/News/Contracts/Contract/Article/2834064/
Both ARC and Connected Global Solutions filed protests at GAO on Nov. 23, 2021.
GAO decision is forthcoming.
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SOME THOUGHTS
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Is the Global Household goods contract a “high risk” procurement?
USTRANSCOMs efforts to consolidate all household good moves for the DoD may not be the best course of
action. 325,000 moves by one contractor may overwhelm that contractor's capacity. For example, Tier One
conducted roughly 30,000 moves as of 2018 for the DoD. That is only ten percent of the number of moves
contemplated by the GHC. Can KBR cover the other 90%?
Will the GHC actually provide better service to the customer?
Will the GHC be able to survive scrutiny at GAO and perhaps the Court of Federal Claims? Or will it end up like
the Joint Enterprise Defense Infrastructure (JEDI) contract which abandoned the single award contract for a
multiple award contract?
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Final Thoughts: High Sustain Rate?
Removing the Global Household Goods Contract from the mix, reduces the sustain rate to 30%.
The sustain rate appears not to be due to a TRANSFARS clause.
Rather it is due to standard procurement law.
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SPEAKER
INSERT YOUR
LOGO HERE
THANK YOU TO OUR SPEAKER
Jason Moy
Cordatis LLP
jmoy@cordatislaw.com
(202) 342-2550
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THANK YOU FOR ATTENDING!
FAR SUPPLEMENTS
FEDERAL ACQUISITION
REGULATIONS
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