The FireLiner conversion is scheduled to be completed in May 2021 in time for the next fire season in North America. at 1. See AR, Tab 22, Contracting Officer Letter to RUS, June 25, 2013. at735-36. For the next three months the Forest Service tried to reach an alternative settlement agreement with Neptune. Tr. 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. 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. at 473. On November 26, the NRE Undersecretary recommended the award of a sole-source contract to Neptune. at5556. 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). Overview. [2] AR, Tab67, NextGen RFP. Id. at480-85, 525-28; AR, Tab 149, SPE Briefing Paper for ASA, Oct. 7, 2013, at 1-7. 1 The average fleet age is based on our own calculations and may differ from other figures. Global Leaders in Aerial Firefighting Coulson Aviation (Coulson Aircrane Ltd.) is a privately owned family company based in Port Alberni, British Columbia, Canada. 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. Servs., Inc., supra. . NI Indus., Inc., Vernon Div., B-223941, Dec. 15, 1986, 86-2 CPD 674 at 3. The aircraft was the 2762nd 737 built, and was delivered new to Southwest Airlines in November 1995. The SPE then asked FI to perform a comparison of its conclusions with those of RUS. 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. Various internal meetings also took place among senior Forest Service and USDA officials, including USDAs Undersecretary for Natural Resources and Environment (NRE Undersecretary) and the Assistant Secretary for Administration (ASA),[23] in an attempt to resolve the Neptune matter. See 31 U.S.C. . Subsequently, the Forest Service amended the NextGen solicitation and received revised proposals from offerors. The industrial mobilization exception to competition requirements may be used where an agency determines that it is necessary to award the contract to a particular source . One such example was the difference in Neptunes revenue projections detailed above. This time the air tanker descended two times over the fire zone, crashing at 4:14 pm, while executing the second descent in the Fitzgerald River National Park. Rather, the protesters challenge the reasonableness of the agencys determination that the sole-source contract here is necessary to maintain a vital source of supply. As set forth above, agencies are generally required to conduct procurements using procedures designed to obtain full and open competition. In this regard, however, the J&A did not address the fact that both 10Tanker and Coulson had previously approached the Forest Service about adding additional airtankers to their NextGen contracts (two additional airtankers in the case of Coulson), and that 10Tanker had delivered a second certified airtanker to the Forest Service for the 2013 fire season. . Id. If the agency reasonably determines that the award of a contract on a sole-source basis to Neptune is necessary for large airtanker services, the agency should execute a properly-reasoned J&A for the sole-source award. After a period of storage and conversion, it began operating as an air tanker in July 2022.[7][8]. OTC Markets executives and other stock owners filed with the SEC include: Track performance, allocation, dividends, and risks, Annotate, download XLSX & look up similar tables, Filter, compare, and track coins & tokens, Stocks and cryptocurrency portfolio tracker. The determination of whether a party is interested to challenge a sole-source award involves considering, among other things, the basis of the sole-source award. Coulson Protest, Feb. 10, 2014, at 55. Save my name, email, and website in this browser for the next time I comment. In a subsequent meeting conducted by the SPE, RUS employees generally agreed with the FI findings and conclusions. . Where a federal agency makes a sole-source award for purposes of maintaining a particular source for an item or service, concern for maximizing competition is secondary to the agencys industrial mobilization needs. On June 13, the Forest Service made NextGen contract awards as follows: AR, Tab 71, Neptune Protest, May 16, 2013 (B-406920.8), exhib. On August 26, the Forest Service informed Neptune that the SPE would not approve the sole-source contract contemplated by the parties settlement agreement, insofar as the financial analysis of the additional documents provided by Neptune indicated that the company was financially viable without such a contract. [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. 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. On 6 February 2023, a Boeing 737-300 owned by Coulson Aviation and used as an air tanker crashed in the Fitzgerald River National Park in the Great Southern Region of Western Australia while fighting multiple fires. We will question those decisions only if the evidence shows that the agency has abused its discretion. Similarly, the cost projections developed by FI assumed, per the terms of the Legacy contract, that Neptune would be reimbursed its fuel costs in addition to aircraft flight rates. at 5; see York Intl Corp., B-244748, Sept.30, 1991, 91-2 CPD 282 at 4-5 (settlement agreements will not be enforceable if they fail to comply with applicable statutes and regulations). A noncompetitive contract was awarded to Neptune on December12. En route to the fires, the aircraft climbed to 29,000 feet (8,800m), before descending to around 700 feet (210m) over the fire zone once. [30] The $496,211,590 figure consists of Neptunes $70,887,370 total cost per aircraft times seven aircraft. Tr. 41 U.S.C. at 52. The company was formerly known as Pink OTC Markets Inc. and changed its name to OTC Markets Group Inc. in January 2011. AR, Jan. 31, 2014, at 9. FI found that the fundamental difference was that RUS had solely relied on Neptune-provided financial projections while FI had had access to a wider range of information that allowed it to develop its own projections. [22] The agency subsequently provided Neptune with copies of both the RUS and FI financial analyses reports. [19] The settlement agreement was signed on the Forest Services behalf by its AQM Director, who was the head of the contracting activity. at 451-52. 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. AG-024B-C-14-9000, at B-1. First, RUSs conclusion, that Neptune needed a NextGen contract to remain viable, was based entirely on unverified financial projections as provided by Neptune. Id. The NextGen RFP, issued as a small business set-aside, contemplated the award of multiple fixed-price contracts under seven contract line items (CLIN) for airtanker firefighting services on an exclusive-use basis. 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. See Agency Post-Hearing Comments, Mar. 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. 2 Future records only include new-built aircraft close to delivery and expected second-hand deliveries. The company will do the same . at 441, 451; AR, Tab24, SPE Email to AQM Requesting Additional Neptune Information, July12, 2013, at 1-2. [38] Any sole-source contract based on urgency presumably would have been 1 year in length (i.e., the 2014 fire season), not 9 years. R. Cromwell Coulson serves as President, Chief Executive Officer, Director of the Company. Coulsons Port Alberni facility is also busy converting another one of its 737-300s into the B737 FireLiner. Id. 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. 21.8(d)(1). End of Chile Aerial Firefighting Season 2022. We first implemented our night aerial fire suppression protocols in response to the 2009 Black Saturday bushfires in Victoria Australia. The agency justified the solesource award under 41 U.S.C. See FAR 6.302-3; see also Lance Ordnance Co. Inc.; Martin Elecs., Inc., B-246849, B-246952, Mar. In sum, while the agency may not have entered into a settlement agreement promising to disregard applicable procurement statutes and regulations, the agencys subsequent decision to award a sole-source contract to Neptune so as to comply with the terms of the settlement agreement and avoid a Neptune-threatened lawsuit was without a reasonable basis. The NextGen RFP required aircraft to have a minimum payload of 2,400gallons, and a target of 3,000-5,000 gallons. The RUS also questioned whether Neptune had the ability to modify the payment terms of any of its existing long terms debts. The protesters should submit their certified claims for costs, detailing the time expended and costs incurred, directly to the contracting agency within 60days after receipt of this decision. 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. 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. 21.0(a)(1), 21.1(a) (2013); Cattlemens Meat Co., B-296616, Aug. 30, 2005, 2005 CPD 167 at 2 n.1. 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. Coulson and 10 Tanker protested to our Office, challenging the agencys price and technical evaluations, communications with offerors, and source selection decision. File: B-409356.2; B-409356.3; B-409356.4; B-409356.5; B-409356.6. Coulson Aviation (USA) Inc.; 10 Tanker Air Carrier, LLC; Minden Air Corp. and the results or a statement of the reason market research was not conducted. FAR 6.303-2(b)(3), (5), (8). By contrast, Neptune did not provide any detail with its cost projections to RUS, so it is unclear if fuel is included, or if government reimbursement is considered. Id. See Hearing Transcript (Tr.) 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. Similarly, when considering alternative sources and the market research regarding such sources, the J&A states that [t]here are no certified [large airtankers] currently available that arent already under contract with the Forest Service. In order for a protest to be considered by our Office, a protester must be an interested party, that is, an actual or prospective offeror whose direct economic interest would be affected by the award or failure to award a contract. We find the J&A to be incomplete and inaccurate in certain key regards. CICAs overriding mandate is for full and open competition in government procurements, obtained through the use of competitive procedures. T-137 was purchased in May 2019 by . AR, Tab66, USDA Email to GAO, Sept. 6, 2012. Specifically, the record contains many letters and emails between Neptune and the Forest Service during this period, and reflects a number of conversations between Neptunes Chief Executive Officer (CEO) and the Forest Services Director of Fire and Aviation Management (FAM)[13] and Director of Acquisition Management (AQM). FI also found that Neptune had based its revenue projections for the same period on the use of seven P2V aircraft, rather than six P2V and one BAe-146 aircraft (and the higher BAe-146 rates) as specified by the terms of the Legacy contract. [32] In relevant part, the FAR states as follows: (2) Full and open competition need not to be provided for when it is necessary to award the contract to a particular source or sources in order--. at 107; AR, Tab 18, Neptune Settlement Agreement, June 6, 2013, exhib. E: cg@coulsongroup.com document.getElementById( "ak_js_1" ).setAttribute( "value", ( new Date() ).getTime() ); 500 Trillium Dr., Unit 23, Kitchener, ON N2R 1E5 | Phone: 519-748-1591 | Toll-Free: 1-866-834-1114 | Fax: 519-748-2537 Previously operated by U.S. Customs and Border Protection, the fast, light corporate jets flew for the past 40 years tracking, detecting and intercepting illegal air smugglers attempting to cross the U.S. border. Our fleet currently features custom designed Hercules C-130s, Sikorsky S-61 helicopters, Boeing Chinook CH-47 helitankers, Sikorsky Black Hawk UH-60 helitankers, and our custom-converted Boeing 737 FireLiner fleet equipped with our proprietary RADS-XXL technology. 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). Based on her review of all information, including the FI financial analysis, the SPE concluded that the planned sole-source contract award to Neptune for industrial mobilization reasons was not presently justified (Neptune didnt need a contract). at 32. The protesters argue that the sole-source contract awarded to Neptune, which was promised in exchange for Neptunes withdrawal of an earlier bid protest, is not justified. 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. [2] Large airtankers can carry 1,800-8,000 gallons of fire retardant. AR, Tab31, FI Email to USDA, Aug. 13, 2013, at 1. at 138, 235. Rather, the record demonstrates, as acknowledged by the agency, that Neptune is presently financially viable and is expected to remain financially viable through the term of its Legacy airtanker contract (2017). Id., 21.8(f)(1). at 4. 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. E: cg@coulsongroup.com 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. Net Profit : Trademark Applications . Read More. Canada V9Y 8E9. 31, 1992, 92-2 CPD 29 at 3-4. The two crew members aboardboth pilotssurvived with minor injuries and were taken to hospital. See also Federal Acquisition Regulation (FAR) 6.302-3. 9 of the 16 potential [large airtankers] for 2014 are older and riskier to operate than newer NextGen airtankers. Fort Worth, TX: 69 : PROFESSIONAL AIRLINE SERVICES: Doral, FL: 42 : SOUTHWEST AIRLINES: Dallas, TX: 41 : UNITED . When an agency uses noncompetitive procedures under 41 U.S.C. Two C550s are awaiting upgrades now at the Coulson Port Alberni, B.C., base, while another is presently being repainted elsewhere in the Coulson crimson and white livery. Moreover, Neptune repeatedly informed the Forest Service that Neptune would file a lawsuit against the agency if the agency did not satisfy the terms of the parties settlement agreement. 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. This will be the third converted 737 for Coulson; the first two are identified as T-137 and T-138. at 45. 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]. Your email address will not be published. 6. Id. Please refer to the current fleet list to see each aircraft's individual age. 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. In responding to the protests, the agency has acknowledged that it was initially concerned that Neptune would immediately go out of business in during [sic] the 2013 fire season, leaving the Forest Service without any of the Legacy air tankers Neptune supplied under the contract awarded March 27, 2013. Agency Post- Hearing Comments, Mar. See AR, Tab 54, Contract No. 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. The protesters argue that the agency put the cart before the horse, and agreed to settle Neptunes protest before properly determining that the promised sole-source award complied with CICA. AR, Tab 67, NextGen RFP, at M-4. 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. Tr. AR, Tab 69, TEB Report, Apr. [37] Moreover, while FIs conclusions were limited to the period through 2017, at no time did the agency conduct any other analysis to determine Neptunes financial viability after 2017. 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