In fact, the ASA testified that the agency plans to conduct additional competitions in the coming years under which Neptune is eligible to compete and could receive awards. After taking on a new retardant load, it took off at 1:50 pm for the second mission. [11] AR, Tab 11, Neptune Email to Contracting Officer, May 9, 2013. Specifically, the protesters argue that: (1) Neptune is not a vital supplier such that the large airtanker industrial base can be maintained without resorting to noncompetitive procurements; and (2)Neptune does not require a sole-source contract to remain a source of large airtankers. See AR, Tab 35, USDA Email to Neptune, Sept. 17, 2013, at 1; Tr. 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. 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). Critical to this justification are the following facts: 1. AR, Tab63, Neptune Email to Contracting Officer, June 26, 2013. 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. A, Neptune Rate Sheet. Mr. Coulson is responsible for the Companys overall growth and strategic direction and has led the transformation of the company into an operator of regulated financial markets for U.S. and global companies. With our proprietary technology, multiple aircraft types, and highly experienced attack crews we can fight fires on multiple continents simultaneously. We will sustain a protest, however, where an agencys J&A fails to demonstrate that it is in fact necessary to award a contract to a particular source for industrial mobilization purposes. The SPE then asked FI to perform a comparison of its conclusions with those of RUS. 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). Coulson's and 10 Tanker's protests were dismissed as academic. While it was conducting the NextGen large airtanker procurement, the Forest Service also awarded a number of Legacy contracts for large airtanker services. [16] The Forest Service believed RUS possessed financial expertise that could be of assistance. Required fields are marked *. Coulson Aviation (USA) Inc., of Port Alberni, British Columbia, Canada, 10 Tanker Air Carrier, LLC, of Albuquerque, New Mexico, and Minden Air Corp., of Minden, Nevada, protest the noncompetitive award of contract No. 18, 2014, at7. The SPE made a series of requests of the Forest Service for additional information, including Neptunes financial statements and balance sheets, Neptunes Legacy contract, and documents related to the NextGen procurement. LouisA.Chiarella, Esq., and GuyR.Pietrovito, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. at658), the agency acknowledges that the 9-year, sole-source contract awarded to Neptune was based on the industrial mobilization exception to CICA. Pentagon announces Coulson Aviation is awarded a $53 million CDN contract with the U.S. Department of Defense to equip seven Lockheed Martin C-130 aircraft with firefighting equipment. AR, Tab 143, Forest Service Large Airtanker Modernization Strategy, Feb. 10, 2012, at 2. The agency does not dispute that 10Tanker had an additional airtanker available (in fact, already performing) that met Forest Service requirements at the time the J&A was signed. Net Profit : Trademark Applications . The Forest Services procurement of NextGen airtanker services has a long and contentious history. Tr. They pride themselves on being the most efficient and safety conscious aerial firefighting team in Australia. When an agency uses noncompetitive procedures under 41 U.S.C. We are world leaders in aerial firefighting innovation, providing meticulously serviced aircraft in order to safely and efficiently attack fires 24/7. AR, Feb. 19, 2014, at 17. Coulson Protest, Dec. 20, 2013, at 7-8; Coulson Protest, Feb. 10, 2014, at 4. Coulson purchased six Boeing 737-300s from Southwest Airlines back in 2017. 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. Our Office confirmed the withdrawal of Neptunes protest and closed the file without rendering a decision on the protests merits. We find the J&A to be incomplete and inaccurate in certain key regards. in order . There are no executives at OTC Markets getting paid more. 3304(a). As explained below, the record does not support the USDAs decision to award a sole-source contract to Neptune for industrial mobilization purposes. 2020 Coulson Aviation is awarded a 5 year aerial firefighting contract for their Boeing 737 FIRELINER aircraft by the United States Forest Service (USFS). 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. [31] The USDA contends, citing to our decision in Merlin Intl, Inc., B-310611, Jan. 2, 2008, 2008 CPD 66, that a protester is not an interested party to challenge a sole-source award unless it can meet all of the agencys requirements at the time of the sole-source determination. Tr. For the next three months the Forest Service tried to reach an alternative settlement agreement with Neptune. | Overview Coulson . [22] AR, Tab 32, Forest Service Letter to Neptune, Aug. 26, 2013, at 2. Moreover, apart from Neptunes own unsupported statements and the anecdotal views of various agency officials, the record contains no analysis or evidence of Neptunes financial condition after 2017.[36]. [18] AR, Tab 18, Neptune Settlement Agreement, June 6, 2013. 1 The average fleet age is based on our own calculations and may differ from other figures. Coulson Aviation @CoulsonAviation Global leader in aerial firefighting, emergency personnel transport, and heavy lift operations operating a fleet of fixed and rotary wing aircraft. We find this argument to be entirely without merit, and the reliance on FAR 6.304(d) misplaced; an accurate description of the services being obtained on a noncompetitive basis is not limited to the options that must be included when determining the J&As approval authority. They do not include all outstanding orders as reported by aircraft manufacturers. [1] Our decision in Coulson Aviation (USA) Inc.; 10 Tanker Air Carrier, LLC--Costs, B406920.6, B-406920.7, Aug. 22, 2013, 2013 CPD 197, provides additional details concerning the history of this procurement. 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. [28] In fact, at the hearing conducted by our Office, the ASA testified that the financial analysis conducted by FI led [USDA] to an understanding that Neptune would not go out of business. Tr. 27.4 Years. at 473. Similarly, if the protesters were to prevail in their challenge and the agency decided to meet its requirements by exercising options available to it under the NextGen contract, the protesters would be interested and eligible to receive such orders. The protesters generally do not dispute that the Forest Service requires additional large airtankers to perform its firefighting mission. The oldest executive at OTC Markets Group, Inc. is AndrewWimpfheimer, 63, who is the Director. at127-29, the agency decided not to override the stay. Noncompetitive awards should be limited to only what is needed to achieve the objective, in this case to maintain a vital source of supply . See also Federal Acquisition Regulation (FAR) 6.302-3. Rationale The rules do not support the issuance of a sole source award based on the fact that a firm did not win a competitive procurement or in exchange for a particular action, such as the withdrawal of a protest or [Freedom of Information Act] request. 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. Moreover, given the contract options available to the Forest Service under the competitively-awarded NextGen contracts, Neptune may no longer represent a vital source that must be maintained by the Forest Service after 2017. Options offered by the Forest Service to Neptune included: (1) adding two additional BAe-146 aircraft to Neptunes Legacy contract (beyond the eight large airtankers then being provided), AR, Tab 32, Forest Service Letter to Neptune, Aug. 26, 2013, at 2; and (2) offering Neptune a sole-source contract of such size that it could be approved below the level of the SPE (i.e., less than $62.5 million). Accepting the projected revenues and expenses as provided by Neptune on their face, RUS ultimately concluded that the only scenario in which the company could obtain a positive net income over the next 5years was where Neptune received two NextGen contract awards in addition to its current Legacy contract. 10 Tanker Protest, Feb. 10, 2014, at120-35. Subsequently, the Forest Service realized that the sole-source contract promised to Neptune would require the approval of USDAs senior procurement executive (SPE). After also finding Neptunes expected costs to be lower than the companys projections, FI concluded that Neptune would have the financial capacity to operate and continue performing on its in-place Legacy contract with the Forest Service through, at a minimum, calendar year 2016, without any further contract awards. Specifically, in making her recommendation the SPE stated as follows: General Public policy, the Competition in Contracting Act, and the FAR promote competition to ensure a fair playing field for firms interested in doing business with the Federal government. Id. However, FI also expressed its opinion to the SPE that Neptune remained viable (without a sole-source award) through the end of its Legacy contract (2017). 21.8(d)(1). 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. Tr. Servs., Inc., B-237742, Mar. . 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. AR, Jan. 31, 2014, at 57. 4. [36] Neptune and USDA reason that because Neptune currently has no contract in place for large airtanker services after 2017, this demonstrates that Neptune cannot remain viable after 2017. A Forest Service technical evaluation board (TEB) evaluated offerors proposals. 2 Future records only include new-built aircraft close to delivery and expected second-hand deliveries. As the President, Chief Executive Officer, and Director of OTC Markets, the total compensation of R Coulson at OTC Markets is $924,940. 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. AR, Tab 57, Neptune Letter to Contracting Officer, Apr. Servs., Inc., supra. See Tr. The agency justified the sole-source award under 41 U.S.C. The FireLiner conversion is scheduled to be completed in May 2021 in time for the next fire season in North America. We find it both premature and unreasonable for USDA to determine that Neptune requires a sole-source contract now in order to maintain Neptune as a source of large airtanker services after 2017. AR, Tab 56, Neptune Legacy Contract, at B-2. at 55, 75; AR, Tab 1, FAM Director Declaration, Jan. 28, 2014, at 5. As a preliminary matter, USDA argues that the Coulson and Minden protests should be dismissed because these protesters are not interested parties. Jonathan D. Shaffer, Esq., John S. Pachter Esq., Mary Pat Buckenmeyer, Esq., and Rhina M. Cardenal, Esq., Smith Pachter McWhorter PLC, for Coulson Aviation (USA) Inc.; Thomas P. Humphrey, Esq., James G. Peyster, Esq., Olivia L. Lynch, Esq., Derek R. Mullins, Esq., and Robert J. Sneckenberg, Esq., Crowell & Moring LLP, for 10 Tanker Air Carrier, LLC; and Peter B. Hutt II, Esq., and Joseph W. Whitehead, Esq., Akin Gump Strauss Hauer & Feld LLP, for Minden Air Corp., the protesters. On December 2, the SPE provided the ASA with a detailed memorandum and documents in support of her recommendation that he not approve the J&A. Coulson Aviation (USA) Inc., of Port Alberni, British Columbia, Canada, 10 Tanker Air Carrier, LLC, of Albuquerque, New Mexico, and Minden Air Corp., of Minden, Nevada, protest the noncompetitive award of contract No. The USDA does not dispute that its consideration of a noncompetitive award to Neptune was motivated by its promise of a sole-source contract in exchange for Neptune withdrawing its bid protest and thereby ending the CICA stay that then precluded the Forest Service from fielding NextGen large airtankers for the 2013 fire season. Even assuming all seven NextGen airtankers are available to fight fires in 2014, the Forest Service still will have only 16 [large airtankers], which is two [large airtankers] fewer than the minimum needed to fulfill its firefighting mission. Just as an agency is not permitted to make a noncompetitive award that exceeds the size or duration of an identified urgency, see FAR 6.302-2(d), an agency is also not permitted to make a noncompetitive award for industrial mobilization reasons where, as here, there has been no showing that the award is presently necessary to maintain a supplier even if deemed vital. [34] For this reason, the agency argues, the FI financial analysis, which did not look beyond a 5-year period, was not relevant or relied upon in the J&A. 3304(a), it is required to execute a written J&A with sufficient facts and rationale to support the use of the cited authority. The J&A stated the following justification for the sole-source award to Neptune: Pursuant to FAR 6.302-3(b) [sic] (i),(ii),(iii) and (vi) [sic], the use of the industrial mobilization exception to the requirement to use full and open competition is appropriate when it is necessary to--(i)[k]eep vital facilities or suppliers in business or make them available in the event of a national emergency; (ii) prevent the loss of a suppliers ability and employees skills; (iii) maintain an acceptable balance of sources; and (vi) [sic] provide for an adequate industrial base by dividing the supply among two or more contractors. . FAR 6.302-3(a)(2)(i). The Forest Service considers Neptune to be a vital supplier of airtankers. Our pilots, aircraft maintenance engineers, and logistics professionals are highly experienced individuals in the aviation industry. At no time before the J&A was approved were FIs conclusions disputed or shown to be in error. Balanced Supply Source It is not clear how a noncompetitive award to Neptune would create a balanced source of supply . Id. The SPE was not the only agency official providing advice to the ASA. Thus, the agencys J&A inaccurately described the services to be obtained from Neptune on a noncompetitive basis. Further, USDA argues the fact that Neptune would not have Legacy-contract revenues after 2017 was so obvious as to not warrant any business analysis focused on the years after 2017. Agency Post-Hearing Comments, Mar. See 41 U.S.C. The SPE also engaged FI Consulting, an external auditing firm, to perform an independent financial viability analysis of Neptune. In addition to its current Legacy contract (including options for more airtankers being placed under the Legacy contract), Neptune is not precluded from competing on work--Forest Service or otherwise--in the coming years. As the Australian business arm of global company Coulson Aviation, Coulson Aviation Australia also supports other Australian States with the provision of large aircraft and experienced team members. Test Registration. 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. Nevertheless, USDA argues that it did not act improperly because the sole-source award complied with all applicable procurement statutes and regulations. at 53. Tr. Its also the only large airtanker capable of carrying 63 firefighters to a fire without the need to reconfigure the cabin providing support, speed and flexibility to fires. Based on all possible aircraft, the total estimated cost of the sole-source contract actually awarded to Neptune is $496,211,590.[30]. The NextGen large airtankers are intended to replace the Forest Services use of Legacy large airtankers, which are generally much older, slower, and less reliable aircraft. 18, 2014, at 7. . Rather, the record demonstrates that the sole-source contract--promised by the Forest Service in exchange for Neptunes withdrawal of an earlier bid protest--was without a reasonable basis. Tr. [7] Although awarded under the Legacy contract, the BAe-146 is a modern large airtanker (Neptune proposed the same type of aircraft in response to the NextGen RFP, albeit with a more advanced version of the fire retardant tank system). The companys latest 737, serial number N619SW, will undergo 43,000-man hours to complete the conversion to a FireLiner consisting of the gravity retardant aerial delivery system (RADS-XXL/2) tank, avionics upgrades, new interior with refurbished passenger seats and new paint in Coulson colours. 4 C.F.R. See FAR 6.302-3. 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