B-167254, AUG. 13, 1969

B-167254: Aug 13, 1969

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WILSEY: REFERENCE IS MADE TO YOUR LETTER DATED JUNE 3. THE FOUR CONTRACTS ARE REFERRED TO IN YOUR LETTER AS BEING AMONG 32 SIMILAR CONTRACTS EFFECTIVE DURING THE FISCAL YEARS 1967 THROUGH 1969. THE ESTABLISHED 1968 FIRE SEASONS WERE TO COMMENCE ON JULY 1. TO PAY SO-CALLED "AVAILABILITY" RATES WHICH WERE TO BE SUCCESSIVELY REDUCED AT CERTAIN STATED PERIODS OF CONTRACT SERVICE. IT APPEARS TO HAVE BEEN CONTEMPLATED UNDER EACH OF THE FOUR CONTRACTS THAT FLIGHT TIME AND AVAILABILITY OR STANDBY RATES WOULD BE NEGOTIATED FOR PRE-SEASON OR POST-SEASON SERVICES. THIS FEATURE OF THE CASE IS DIRECTLY INVOLVED IN THE CLAIM OF THE SIS-Q FLYING SERVICE. ALTHOUGH IT APPEARS THAT WHATEVER OFF-SEASON RATES WERE NEGOTIATED WITH THAT CONTRACTOR WERE SUBSTANTIALLY THE SAME AS THE INITIAL RATES APPLICABLE TO SERVICES PERFORMED DURING THE DESIGNATED FIRE SEASONS.

B-167254, AUG. 13, 1969

CONTRACTS - FLIGHT TIME V AVAILABILITY RATES DECISION TO CERTIFYING OFFICER OF FOREST SERVICE, DEPARTMENT OF AGRICULTURE, CONCERNING CLAIMS UNDER FIRE SERVICE CONTRACTS FOR AIR TANKER SERVICES AT RATES EXCEEDING CONTRACT RATES. CLAIMS OF SIS-Q-FLYING SERVICE AND T.M.B., INC. CONSIDERED AND ALLOWED. DECISION TO CERTIFYING OFFICER ALSO ANSWERS SEVERAL GENERAL QUESTIONS CONCERNING RATES FOR SERVICES.

TO MR. WILSEY:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 3, 1969, YOUR REFERENCE: 6540, ENCLOSING A CLAIM OF SIS-Q FLYING SERVICE, MONTAGUE, CALIFORNIA, IN THE AMOUNT OF $1,358, AND CLAIMS OF T.B.M., INCORPORATED, TULARE, CALIFORNIA, IN THE AMOUNTS OF $1,261, $1,237.30 AND $2,917.50, UNDER FOREST SERVICE CONTRACT NO. 39-1720 WITH SIS-Q FLYING SERVICE, AND FOREST SERVICE CONTRACTS NOS. 39-2698, 39-1765 AND 39-1741 WITH T.B.M., INCORPORATED, AS RENEWED DURING THE SPRING OF 1968 TO COVER THE 1968 FIRE SEASON FOR CERTAIN NATIONAL FOREST AREAS, AND POSSIBLY FOR ADDITIONAL PERIODS OF TIME DURING THE FISCAL YEAR 1969.

THE FOUR CONTRACTS ARE REFERRED TO IN YOUR LETTER AS BEING AMONG 32 SIMILAR CONTRACTS EFFECTIVE DURING THE FISCAL YEARS 1967 THROUGH 1969. UNDER THE FOUR CONTRACTS, AS RENEWED FOR THE FISCAL YEAR 1969, THE ESTABLISHED 1968 FIRE SEASONS WERE TO COMMENCE ON JULY 1, 1968, TO CONTINUE TO OCTOBER 15, 1968, IN THE CASE OF CONTRACT NO. 39-1720, TO OCTOBER 31, 1968, IN THE CASE OF CONTRACT NO. 39-2698 AND TO NOVEMBER 30, 1968, IN THE CASES OF CONTRACTS NOS. 39-1741 AND 39-1765. THE GOVERNMENT AGREED TO PAY CERTAIN HOURLY FLIGHT TIME RATES, WITH HIGH RATES BEING APPLICABLE TO THE FIRST 30 HOURS OF FLIGHT TIME AND LOWER RATES BEING APPLICABLE TO ALL FLIGHT HOURS IN EXCESS OF 30 HOURS; AND TO PAY SO-CALLED "AVAILABILITY" RATES WHICH WERE TO BE SUCCESSIVELY REDUCED AT CERTAIN STATED PERIODS OF CONTRACT SERVICE.

IT APPEARS TO HAVE BEEN CONTEMPLATED UNDER EACH OF THE FOUR CONTRACTS THAT FLIGHT TIME AND AVAILABILITY OR STANDBY RATES WOULD BE NEGOTIATED FOR PRE-SEASON OR POST-SEASON SERVICES. THIS FEATURE OF THE CASE IS DIRECTLY INVOLVED IN THE CLAIM OF THE SIS-Q FLYING SERVICE, AND IT MAY ALSO BE INVOLVED IN THE CLAIMS OF T.B.M., INCORPORATED, ALTHOUGH IT APPEARS THAT WHATEVER OFF-SEASON RATES WERE NEGOTIATED WITH THAT CONTRACTOR WERE SUBSTANTIALLY THE SAME AS THE INITIAL RATES APPLICABLE TO SERVICES PERFORMED DURING THE DESIGNATED FIRE SEASONS.

PAYMENTS WERE MADE TO T.B.M., INCORPORATED, AT "HIGH" CONTRACT RATES FOR SERVICES PERFORMED IN JUNE 1968 BUT, AS THE RESULT OF SUCH PERFORMANCE WITHIN A PERIOD OF 30 DAYS PRIOR TO THE BEGINNING OF THE 1968 FIRE SEASON, JULY 1, 1968, THE FOREST SERVICE APPLIED REDUCED CONTRACT RATES IN MAKING PAYMENTS FOR SERVICES PERFORMED DURING JULY 1968 EARLIER THAN THE POINTS AT WHICH THE REDUCED RATES WOULD HAVE BEEN APPLIED IF THE CONTRACTOR HAD NOT PERFORMED ANY PRE-SEASON SERVICE. THE CONSIDERATION OF SUCH PRE- SEASON SERVICES IN THE COMPUTATIONS OF AMOUNTS PAYABLE FOR SERVICES PERFORMED AFTER JUNE 30, 1968, WAS BASED UPON THE PROVISIONS OF SECTION 3.3 OF EACH OF THE THREE CONTRACTS WITH T.B.M., INCORPORATED, THAT THE GOVERNMENT MAY REQUIRE READY AVAILABILITY OF AERIAL TANKERS FOR PERIODS OF UP TO 30 DAYS BEFORE AND/OR AFTER THE DESIGNATED PERIOD, AND THAT ANY PRE- SEASON OR POST SEASON SERVICE WILL BE PERFORMED UNDER PROVISIONS OF THE "CHANGES" CLAUSE OF THE CONTRACT.

ON APRIL 26, 1968, THE FOREST SERVICE ISSUED, AT THE REQUEST OF THE AIR TANKER ASSOCIATION, A DOCUMENT ENTITLED "NEGOTIATED AIR TANKER CONTRACT ADMINISTRATIVE GUIDELINES," WHICH CONTAINS, WITH RESPECT TO THE SECTION 3.3 PROVISIONS OF THE CONTRACTS THEN IN EXISTENCE, A NUMBER OF GUIDELINES, INCLUDING GUIDELINE NO. 5, WHICH STATES THAT THE POST SEASON SERVICE WILL BE ON A FIVE-DAY MINIMUM BASIS.

THE ADMINISTRATIVE GUIDELINES WERE NOT MADE A PART OF THE CONTRACTS HERE INVOLVED AND YOU HAVE INDICATED THAT REVISIONS HAVE BEEN MADE IN AIR TANKER CONTRACTS FOR THE FISCAL YEAR 1970 TO CLARIFY THE INTENT OF THE FOREST SERVICE.

THE CLAIM OF THE SIS-Q FLYING SERVICE FOR $1,358 UNDER CONTRACT NO. 39- 1720 COVERS FLIGHT SERVICE PERFORMED ON OCTOBER 28, 1968, WHICH DATE IS BEYOND THE 1968 FIRE SEASON DESIGNATED IN THE CONTRACT. THE CONTRACTOR CLAIMED $1,148 FOR 2 HOURS AND 44 MINUTES OF FLIGHT TIME AND $210 FOR ONE DAY OF "ORDERED STANDBY.' THOSE RATES EXCEED THE ESTABLISHED CONTRACT RATES, INCLUDING THOSE WHICH WERE TO BE INITIALLY APPLIED, BUT THE TOTAL CLAIM FOR $1,358 IS LESS THAN COULD HAVE BEEN ALLOWED BY APPLYING THE ABOVE ADMINISTRATIVE GUIDELINE NO. 5, PROVIDING THAT POST-SEASON SERVICE WILL BE ON A FIVE-DAY MINIMUM BASIS.

APPLICATION OF THAT GUIDELINE WOULD APPEAR TO BE REASONABLE WHERE, AS HERE, A BREAK IN SERVICE HAS OCCURRED SINCE THE FLIGHT TIME AND AVAILABILITY PROVISIONS OF THE AIR TANKER CONTRACTS ARE SO INTERRELATED AS TO SUGGEST THAT IT WOULD BE INEQUITABLE TO LIMIT PAYMENT FOR AVAILABILITY TO THE NUMBER OF DAYS ON WHICH FLIGHT SERVICE WAS PERFORMED IF LESS THAN FIVE DAYS AND A BREAK IN SERVICE HAD OCCURRED AT THE END OF THE DESIGNATED FIRE SEASON OF THE CONTRACT. WE THEREFORE AGREE WITH THE ADMINISTRATIVE RECOMMENDATION THAT THE CLAIM OF THE SIS Q FLYING SERVICE BE ALLOWED IN FULL.

ACCORDINGLY, YOU ARE ADVISED THAT THE CLAIMED AMOUNT OF $1,358 PROPERLY MAY BE CERTIFIED FOR PAYMENT TO THE CONTRACTOR'S ASSIGNEE OF RECORD, THE BANK OF AMERICA, NS AND SA, YREKA, CALIFORNIA, OR TO THE SIS-Q FLYING SERVICE IF THE ASSIGNMENT TO THE BANK HAS BEEN RELEASED.

THE BASIC CONTENTION OF T.B.M., INCORPORATED, IS THAT REDUCED CONTRACT RATES SHOULD NOT HAVE BEEN APPLIED SO FAR AS THE REDUCTIONS WERE BASED IN PART ON CONSIDERATION OF PRE-SEASON SERVICES PERFORMED DURING THE MONTH OF JUNE 1968, BECAUSE ONLY ONE OF ITS THREE CONTRACTS WAS ACTIVATED BY CHANGE ORDER DURING THE MONTH OF JUNE 1968, AND THAT CHANGE ORDER CALLED FOR ONLY ONE DAY OF FLIGHT SERVICE WHICH WAS PERFORMED ON JUNE 30, 1968. WE AGREE WITH THE ACTING CONTRACTING OFFICER'S STATED OPINION THAT "CONSTRUCTIVE CHANGES" TOOK PLACE WHEN THE CONTRACTOR WAS ORALLY REQUESTED TO PERFORM AND THE SERVICES WERE PERFORMED IN ACCORDANCE WITH SUCH REQUESTS. HOWEVER, THE VERBAL REQUESTS AND THE CONTRACTOR'S RESPONSE THERETO BY PERFORMING THE REQUESTED SERVICES DO NOT IN ANY MANNER REFLECT AN AGREEMENT THAT THE PRE-SEASON SERVICES WERE TO BE TREATED WITH OTHER SERVICES AS A WHOLE WHEN DETERMINING AT WHAT POINTS REDUCED RATES FOR AVAILABILITY AND FLIGHT TIME WERE TO BE APPLIED.

THE THREE CONTRACTS PROVIDE AT SECTION 8 FOR PAYMENT AT CERTAIN RATES FOR THE FIRST 30 HOURS OF FLIGHT TIME AND AT REDUCED RATES FOR ADDITIONAL HOURS. THE CONTRACTS PROVIDE AT SECTION 9 THAT THE AVAILABILITY RATES SPECIFIED THEREIN WERE TO BE APPLICABLE TO THE DESIGNATED PERIOD OF SECTION 1 AND, UNDER THE CONTRACTS, AS RENEWED FOR THE FISCAL YEAR 1969, THE DESIGNATED PERIODS UNDER SECTION COMMENCED ON JULY 1, 1968. BELIEVE THAT SECTION 3.3 OF THE CONTRACTS DOES NOT AFFORD A SUFFICIENT BASIS FOR CONSIDERING THAT, FOR REDUCED RATE PAYMENT PURPOSES, THE DESIGNATED PERIODS OF SECTION 1 OF THE CONTRACTS MUST BE CONSIDERED AS HAVING BEEN EXTENDED BECAUSE THE CONTRACTOR PERFORMED SERVICES BEFORE THE DESIGNATED SECTION 1 PERIODS EITHER IN ACCORDANCE WITH CHANGE ORDERS OR VERBAL REQUESTS OF THE GOVERNMENT.

WE FIND IT UNNECESSARY TO SPECULATE ON THE QUESTION RAISED IN YOUR LETTER AS TO WHY THE CONTRACTOR DID NOT CLAIM ANY ADJUSTMENT IN AMOUNTS PAID FOR POST-SEASON SERVICES FURNISHED DURING THE MONTH OF DECEMBER 1968. WE ALSO FIND NO REASON FOR TAKING EXCEPTION TO THE PRE-SEASON AVAILABILITY PAYMENT CREDIT OF $1,100 WHICH THE CONTRACTOR HAS ALLOWED IN THE COMPUTATION OF ITS CLAIM FOR $2,917.50 UNDER CONTRACT NO. 39 1765. WE HAVE NOT DETERMINED THE EXACT AMOUNT DUE ON THIS CONTRACTOR'S REGULAR FIRE SEASON CLAIMS AGGREGATING THE SUM OF $5,415.80. HOWEVER, YOU ARE ADVISED THAT SUCH AMOUNT AS IS ADMINISTRATIVELY FOUND DUE ON THE PARTICULAR CLAIMS, BASED ON OUR DETERMINATION THAT THE PRE-SEASON SERVICES WERE NOT REQUIRED TO BE CONSIDERED IN ARRIVING AT THE POINTS OF RATE REDUCTIONS, PROPERLY MAY BE CERTIFIED FOR PAYMENT TO THE CONTRACTOR.

YOU HAVE PRESENTED A NUMBER OF GENERAL QUESTIONS WHICH MAY BE INVOLVED IN THE CONSIDERATION OF OTHER AIR TANKER CONTRACTS OF THE FOREST SERVICE IN EFFECT DURING THE FISCAL YEAR 1969. IN REGARD TO THE FIRST QUESTION, THE CONTRACTS CONSIDERED IN THIS CASE COVER A FULL FISCAL YEAR, ALTHOUGH THEY WOULD HAVE BEEN UNENFORCEABLE TO SOME EXTENT SINCE THE CONTRACTORS HAD THE OPTION NOT TO PERFORM UNDER ORDERS ISSUED MORE THAN 30 DAYS BEFORE OR 30 DAYS AFTER THE DESIGNATED FIRE SEASON PERIODS. IN REGARD TO THE SECOND QUESTION, THE CONTRACT RATE REDUCTIONS ARE NOT CONSIDERED TO BE, BY THE TERMS OF THE CONTRACTS, APPLICABLE TO PRE OR POST-SEASON SERVICES. REGARD TO THE THIRD QUESTION, IT IS OUR OPINION THAT THERE IS NOTHING IN THE CONTRACTS TO REQUIRE A CONCLUSION THAT PRE AND POST-SEASON SERVICES BE CONSIDERED IN ARRIVING AT THE POINTS OF RATE REDUCTIONS. IN REGARD TO THE FOURTH QUESTION, WE BELIEVE THAT THE CONTRACTS DO NOT SPECIFICALLY PERMIT PAYMENTS FOR PERIODS OF AVAILABILITY DURING PRE OR POST-SEASON PERIODS, BUT THAT SUCH PAYMENTS WOULD BE CONSISTENT WITH THE GENERAL INTENT OF THE CONTRACTS TO ALLOW FOR PERIODS OF AVAILABILITY DURING WHICH THERE MIGHT OR MIGHT NOT BE ANY SUBSTANTIAL AMOUNT OF FLIGHT SERVICE. IN REGARD TO THE FIFTH QUESTION, THE NUMBER OF ALLOWABLE PRE OR POST SEASON DAYS FOR AVAILABILITY SHOULD, IN OUR OPINION, BE DETERMINED BY MUTUAL AGREEMENT EITHER BEFORE OR AFTER ISSUING A CHANGE ORDER REQUIRING THE FLIGHT SERVICE AND/OR AVAILABILITY, AND THAT THE NUMBER OF DAYS OF AVAILABILITY FOR WHICH THE GOVERNMENT AGREES TO PAY SHOULD NOT BE BASED UPON ANY ARBITRARY RULES SUCH AS A RULE THAT WOULD AUTOMATICALLY REQUIRE THE GOVERNMENT TO PAY FOR AVAILABILITY TIME EXCEEDING FIVE DAYS OF A PRE-SEASON PERIOD WHERE ONLY ONE FLIGHT WAS ORDERED DURING A PERIOD OF 30 DAYS OR LESS BEFORE COMMENCEMENT OF THE ESTABLISHED FIRE SEASON. IN REGARD TO THE SIXTH QUESTION, IT IS OUR OPINION THAT A FAILURE TO ISSUE A CHANGE ORDER BEFORE THE PERFORMANCE OF EITHER PRE OR POST-SEASON SERVICES SHOULD NOT BE REGARDED AS A SERIOUS CONTRACT DEVIATION WHERE REQUIRED SERVICES HAVE BEEN PERFORMED IN ACCORDANCE WITH VERBAL REQUESTS FROM AUTHORIZED FOREST SERVICE PERSONNEL, BUT THAT THE PARTICULAR CONTRACT SHOULD LATER BE AMENDED BY CHANGE ORDER SIGNED BY BOTH PARTIES, OR BY SUPPLEMENTAL AGREEMENT, SHOWING THE AMOUNT DUE THE CONTRACTOR FOR THE SERVICES INVOLVED.

THE CORRESPONDENCE AND DOCUMENTS SUBMITTED WITH YOUR LETTER ARE RETURNED HEREWITH.