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Q. If Chemonics (for example) uses US Government funding to make a fixed price contract to PACT (for example) for deliverables, does PACT need to observe the Fly America Act when it arranges travel under the fixed price contract?
A. FTA grantees are required to include the Fly America clause in their third-party contracts when the contract or subcontract may involve the transportation of goods, equipment or personnel by air. This contract clause requires contractors and subcontractors at every tier to use U.S. - flag air carriers to the extent that service by these carriers is available. This requirement applies to all contracts, including fixed-price contracts. The Fly America requirement may be found at 49 U.S.C. 40118 and 4 CFR Part 52. The FTA Chief Counsel's Office has developed instructions and guidance to grantees for the Fly America clause in their third-party contracts, and it may be found in Appendix A.1, Clause #1, of the Best Practices Procurement Manual (BPPM). There is also a discussion of the Fly America clause in section 8.1.5 - Fly America of the BPPM. The BPPM is available online here.
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Q. Where can one find language for the Fly America Clause?
A. Guidance and contract language concerning the Fly America clause can be found in the BPPM, Appendix A.1, Clause
No. 1.
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Q. Is the Certificate of Compliance, mentioned in the Fly America Clause, similar to the Buy America certification?
A. The Best Practices Procurement Manual (BPPM), section 8.1.5 "Fly America," discusses the required clause, and Appendix A.1 contains suggested clause language.
The noted section in the BPPM states, "If there is no possibility of international shipments or travel under the contract, these provisions are not required."
We conclude that a certification from the contractor is only required when and if international air transportation will be involved in the performance of the contract.
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