[27] The Forest Service issued cure notices to Coulson, Minden, Aero Air, and Aero-Flite in September 2013 for failure to provide approved NextGen airtankers by the contracts MAP start dates. . [5][2][4], Following the accident, the Australian Transport Safety Bureau announced that a team was being assembled from Perth and Canberra to investigate the crash. After receiving the offerors responses, the TEB prepared an evaluation report that included the evaluators final consensus evaluation and analysis of the offerors evaluated prices. [26] Coulson has not released any additional specific technological modifications or upgrades it is making to the aircraft. 9 of the 16 potential [large airtankers] for 2014 are older and riskier to operate than newer NextGen airtankers. Id. Id. Neptune Comments, Feb.24, 2014, at 3-5, citing AR, Tab 150, Neptune Financial Assumptions, May 29, 2013 ([b]ased on denial of contracts under the Next Generation Airtanker Services Solicitation, Neptune is now faced with extinction after the expiration of the Legacy Contracts). Coulson Aviation (USA) Inc.; 10 Tanker Air Carrier, LLC., B-406920 et al., Sept. 7, 2012. 14, 1990, 90-1 CPD 273 at 4-5, affd, B-237742.2, June 11, 1990, 90-1 CPD 546; Techplan Corp., B-234161, May 12, 1989, 89-1 CPD 452 at 5. To the extent the agency believed an urgent need for large airtanker services would justify a noncompetitive 9-year contract, there is no analysis or explanation in the record demonstrating that this is so.[38]. AR, Tab 72, Neptune Letter to GAO, June 6, 2013. Coulson Aviation plans to modify the fuselage on the CH-47, cut the floor of the aircraft and install a 3,000-gallon tank, called the RADS-L (large). Absent from the J&A, however, was any discussion regarding Neptunes need for a sole-source contract to remain a source of supply. Winglets installed 2008. AR, Tab 49, J&A, Dec.9, 2013, at 1. During a visit by Skies to the water bomber base at Sproat Lake, B.C., two of the four Hawaii Mars engines were receiving maintenance. Disclaimer. Robert K. Stewart, Jr., Esq., Davis Wright Tremaine LLP, for Neptune Aviation Services, Inc., the intervenor. . FAR 6.302-3(a)(2)(i). Tr. 31, 1992, 92-2 CPD 29 at 3-4. Id. In a post to Facebook, Coulson Aviation (USA) named captain Ian McBeth, first officer Paul Hudson and flight engineer Rick DeMorgan Jr as the aerial firefighting crew who died in the crash of the . On May 6, the Forest Service announced its intent to make the following awards: AR, Tab 70, NextGen Contract Award Abstract, May 6, 2013. In this case, we have a competitive field and recently awarded multiple contracts on a competitive basis to five firms from a pool of eight firms that submitted proposals on the solicitation. It seems like if were interested in creating a balanced source of supply we would award more air tankers to the other legacy contractor, Minden, or add more air tankers to the current Next Gen contractors versus issuing a noncompetitive award to an unsuccessful offeror. Although the Forest Services long term modernization strategy calls for 18-28 modern large airtankers, the Forest Service is currently dependent upon Legacy large airtankers to meet its needs. Pursuant to the FAR, the head of a contracting activity only has the authority to approve noncompetitive awards of up to $62.5 million. See, e.g., AR, Tab 34, Forest Service Email, Sept. 10, 2013, at 1. AR, Feb. 19, 2014, at 17. The record also reflects that the NextGen contracts represent the primary, but not only, means by which the Forest Service plans to meet its modernization strategy goal of 18-28 modern large airtankers. [18] The settlement agreement specified that the contract to be awarded to Neptune would be the same duration as the NextGen contract awards (i.e., a 5-year base period with five 1-year options). | Overview Coulson . [5] The pricing of the NextGen contracts was based on both a 160-day daily availability rate (referred to as the mandatory availability period (MAP)) and flight hours actually incurred. Accordingly, while the J&A may demonstrate that the Forest Service needs more large airtanker services than it currently has under contract, the J&A completely fails to demonstrate that Neptune must be the supplier of such services or that Neptune currently requires a 9-year sole-source contract to keep it in business as a vital supplier for the agencys post-2017 needs. at 473. The protesters also point to the fact that the only legitimate financial analysis conducted (the analysis by FI) demonstrated that Neptune did not require a sole-source contract to remain viable, as recognized by the agencys SPE, who refused to approve the J&A. AG-024B-S-11-9009 for NextGen large airtanker services. AR, Tab29, FI Financial Analysis, Aug. 2, 2013, at 1-3. at 457. This will be the third converted 737 for Coulson; the first two are identified as T-137 and T-138. A settlement agreement promising award of a contract on a sole-source basis in exchange for abandoning ongoing litigation, such as a bid protest, is not a permissible basis for restricting competition and excluding potential offerors. Specifically, the agency contends that Coulson and Minden did not have additional large airtankers available at the time the J&A was signed that would be capable of performing the requirements of the Neptune sole-source contract (which has an April 28, 2014, start date). Fort Worth, TX: 69 : PROFESSIONAL AIRLINE SERVICES: Doral, FL: 42 : SOUTHWEST AIRLINES: Dallas, TX: 41 : UNITED . On March 27, 2013, the Forest Service awarded Neptune a Legacy contract for five P2V aircraft for 5-years, and for one P2V and one BAe-146[7] aircraft for a base year with four option years, at a total estimated price of $180,252,600. On its third mission, it took off at 3:32 pm. Agency Post-Hearing Comments, Mar. 3. Although the Forest Service had significant concerns about its ability to adequately respond to the 2013 fire season without the protested NextGen large airtankers being available, see Tr. The SPE did several things before taking any action on the Forest Services request. It offers OTC Link Alternative Trading System, an interdealer quotation and trade messaging system; OTC Dealer, a real-time, front-end application that provides consolidated quotation, trading, and information system to attract and access market liquidity; OTC FIX, which uses the industry standard FIX protocol for quote submission, trading, and routing of execution reports; and OTC Link Electronic Communication Networks (ECN) that acts as the executing party on an agency basis in relation to transactions executed on the ECN's platform. A noncompetitive contract was awarded to Neptune on December12. For example, shortly before or after filing its protest, Neptunes CEO told the FAM Director that the company had made a significant investment in modern large airtankers and would go out of business without a NextGen contract award. Thus, the agencys J&A inaccurately described the services to be obtained from Neptune on a noncompetitive basis. The NRE Undersecretary emphasized the importance of large airtankers for wildland firefighting and the Forest Services need for additional airtankers, particularly with regard to the 2014 fire season. Required fields are marked *. The company will do the same . Download VCard. Only supported aircraft types that are active with this airline are included in the calculations. N619SW, operated by Coulson Aviation, departed from Busselton Airport south of Perth on Australia's west coast at 15:32 local time today. 3304(a)(3)(A) (2006), which provides for a noncompetitive award to a particular source to maintain that supplier for a national emergency or to achieve industrial mobilization. AG-024B-C-14-9000 to Neptune Aviation Services, Inc., of Missoula, Montana, by the Department of Agriculture (USDA), U.S. Forest Service, for next generation (NextGen) large airtanker services for wildland firefighting support. AR, Jan. 31, 2014, at 32. Only supported aircraft types that are active with this airline are included in the calculations. Coulson Protest, Feb. 10, 2014, at 55. . As relevant here, the settlement agreement stated that: the Forest Service will award the Contract using noncompetitive procedures, pursuant to 41 U.S.C. Nothing in the record refutes FIs conclusions, nor is there any evidence to suggest that Neptune intends to go out of business now merely because its future prospects appear uncertain. Wildland Fire Management: Improvements Needed in Information, Collaboration, and Planning to Enhance Federal Fire Aviation Program Success, GAO-13-684, Aug. 20, 2013, at 6. Rather, the ASA believed there existed a professional disagreement between her view and his regarding the matter, and that the SPEs procurement expertise did not extend to understanding the Forest Services firefighting mission. AR, Tab63, Neptune Email to Contracting Officer, June 26, 2013. bid protest [challenging the award or performance of the Neptune contract] with no less vigor than that applied in any other bid protest filed against it. 29 Sep 1995. at657-693. Neptune currently provides eight of nine Legacy airtankers (this includes the two BAe-146 aircraft provided by Neptune for the 2013 fire season). [10] The total estimated cost was based on the 5-year base period for a single aircraft. Airtankers (of various sizes) are but one type of aviation resource used by the Forest Service to perform fire suppression missions; other assets include helicopters, aerial supervision fixed-wing aircraft, smokejumper aircraft, heat-detecting infrared aircraft, and water scoopers. 2020 Tr. Decisions as to which suppliers should be included in a mobilization base, and which restrictions are required to meet the needs of industrial mobilization, involve complex judgments that are generally left to the discretion of the federal agencies. [33] Id. As a final matter, in addition to the fundamental lack of support for the J&As premise that Neptune now requires a 9-year sole-source contract in order to maintain the firm in the future as a vital supplier of aircraft, the record reflects that the J&A was premised on materially inaccurate information. We first implemented our night aerial fire suppression protocols in response to the 2009 Black Saturday bushfires in Victoria Australia. Michael Strain is one of East Africa's most active corporate/M&A lawyers; based in Tanzania but also covering the wider region. As stated above, our review of an agencys decision to conduct a noncompetitive procurement focuses on the adequacy of the rationale and conclusions set forth in the J&A. The RUS noted that the information provided by Neptune did not include detailed expense projections or a balance sheet and cash flow projections for the next 5-year period. While the agency argues the fact that other contractors may have airtankers available to perform Neptunes contract to be irrelevant here, AR, Jan. 31, 2014, at 52, we fail to see how the agency can reasonably find Neptune to be a vital source without accurately considering all sources. Coulsons and 10Tankers protests were dismissed as academic. First, RUSs conclusion, that Neptune needed a NextGen contract to remain viable, was based entirely on unverified financial projections as provided by Neptune. AR, Tab 56, Neptune Legacy Contract, at B-2. at 469-70; AR, Tab 145, FAM Email to USDA, Sept. 3, 2013. at79-80. SYDNEY, AUSTRALIA - JANUARY 27: Wayne Coulson, CEO of Coulson Aviation looks on during a press conference at the NSW Rural Fire Service Headquarters, Sydney Olympic Park on January 27, 2020 in Sydney, Australia. The company was formerly known as Pink OTC Markets Inc. and changed its name to OTC Markets Group Inc. in January 2011. [19] The settlement agreement was signed on the Forest Services behalf by its AQM Director, who was the head of the contracting activity. [16] The Forest Service believed RUS possessed financial expertise that could be of assistance. The two crew members aboardboth pilotssurvived with minor injuries and were taken to hospital. Last updated: 1 February 2023 at 11:00am EST. [26] Neptune Aviation [presently] supplies the Forest Service with 8 of the 9 total Legacy airtankers, which represents 88 percent of the Legacy fleet. AR, Tab 49, Neptune J&A, Dec. 9, 2013, at 1. In accordance with the Competition in Contracting Act (CICA), 31U.S.C. This will be the third converted 737 for Coulson; the first two are identified as T-137 and T-138. Specifically, the J&A describes the services to be provided by Neptune as two NextGen large airtankers for up to 9 years, at a total estimated value of $141million. These specific C550s were originally modified and equipped with military fire-control radar, sophisticated infrared cameras, custom instrument panels and law enforcement communication packages. Balanced Supply Source It is not clear how a noncompetitive award to Neptune would create a balanced source of supply . . His ex-wife, 53-year-old Anne Resnik is the daughter of the late Philip Morris. Coulson Aviation (USA) Inc.; 10 Tanker Air Carrier, LLC--Costs, supra, at 2. Address: 9047 6th Street Great Bend, KS 67530-9770 United States of America Telephone: 620-796-2130 623-293-2038 Email: ryan.coulson@fly-kansas.com Coulson points to the fact that in October 2013 it offered to provide the Forest Service with two additional large airtankers under the NextGen contract, and argues it would be available and ready to perform by an April28, 2014, start date (as established by the contract awarded to Neptune). As the only aerial firefighting company operating both fixed-wing aircraft and Type 1 helicopters, Coulson Aviation (USA) Inc. is fully equipped to carry out aerial firefighting across the globe. Neptune, however, rejected all offers that differed materially from the terms of the parties settlement agreement. [33] In fact, the agency acknowledges that [t]he record demonstrates Neptune did not represent to the Forest Service, that it would immediately go out of business without a NextGen contract. AR, Feb. 19, 2014, at 5 (emphasis in original). While agencies have authority to make noncompetitive awards when necessary to maintain vital sources, they do not have authority to make noncompetitive awards merely because an offeror is unsuccessful in a competitively-conducted procurement, or because such action was promised in a settlement agreement. Id. Experience. Ever innovative and creative, Coulson Aviation has established night firefighting operations in Australia and California. [3] Most of the Legacy large airtankers relied on by the Forest Service are P2V aircraft, which have an average age of more than 50 years. The Forest Service contends that this immediate need for additional NextGen airtankers provided it with an industrial mobilization need in December 2013 when it decided to award Neptune a solesource, 9-year contract for NextGen airtanker services. [4] In resolving this protest, GAO conducted a 2-day hearing to receive testimony from various agency officials involved in this procurement. at 471-73. . & Engg Co., B-403561, Nov. 18, 2010, 2010 CPD 276 at 3; SSI Tech., Inc., B-298212, B-298212.2, July 14, 2006, 2006 CPD 183 at 4. 41 U.S.C. Coulson and Minden respond that they are interested parties to protest here because they have a direct economic interest that would be affected by the award of a sole-source contract to Neptune. Foster Coulson of Coulson Aviation said, A brand new technology package will be installed before [the aircraft] go to work. The aircraft will receive upgrades to their cameras and mission systems, as well as new liveries. . 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