B-169899, JUL. 2, 1970

B-169899, JUL. 2, 1970

CONTRACTS -- CONTRACTOR QUALIFICATION -- RETROACTIVE ADMINISTRATIVE APPROVAL DECISION TO CERTIFYING OFFICER OF FOREST SERVICE AUTHORIZING CERTIFICATION FOR PAYMENT OF AN INVOICE FOR HELICOPTER SERVICE PERFORMED BY A PILOT WHO WAS NOT APPROVED UNTIL AFTER THE SERVICES WERE FURNISHED. A PILOT WHO POSSESSED THE LICENSES, EXPERIENCE AND HEALTH QUALIFICATIONS REQUIRED BY THE CONTRACT WHEN HE RENDERED EMERGENCY HELICOPTER SERVICES BUT WHO HAD NOT BEEN APPROVED BY THE CONTRACTING OFFICER UNTIL 2-1/2 WEEKS AFTER THE FLIGHT MAY HAVE CONTRACT WHICH WAS TO ASSURE PERFORMANCE BY QUALIFIED PILOT AS BEING COMPLIED WITH AND THE APPROVAL AS MERELY ADMINISTRATIVE CONTROL OVER THE REQUIREMENT. THEREFORE PAYMENT FOR THE SERVICES IS PROPER.

TO MR. CAMPBELL:

YOUR LETTER DATED MAY 25, 1970, WITH ENCLOSURES, REQUESTS AN ADVANCE DECISION PURSUANT TO 31 U.S.C. 82D AS TO WHETHER AN INVOICE SUBMITTED UNDER FOREST SERVICE CONTRACT NO. 16-876 MAY BE CERTIFIED FOR PAYMENT.

THE SUBJECT CONTRACT WAS AWARDED TO ARIZONA HELICOPTERS, INC., TO FURNISH HELICOPTER SERVICE, INCLUDING PILOTS, TO THE CORONADO NATIONAL FOREST. THE QUESTION PRESENTED FOR RESOLUTION IS WHETHER SERVICES RENDERED BY A PILOT NOT FORMALLY APPROVED BY THE CONTRACTING OFFICER IN ACCORDANCE WITH THE CONTRACT TERMS ARE PAYABLE UNDER THE TERMS OF THE CONTRACT.

WITH RESPECT TO PILOT QUALIFICATION, THE CONTRACT SETS OUT IN SECTION VI OF THE SPECIFICATIONS CERTAIN MINIMUM EXPERIENCE AND HEALTH QUALIFICATIONS AND REQUIRES IN ADDITION THAT PILOTS BE APPROVED BY THE CONTRACTING OFFICER BEFORE ASSIGNMENT UNDER THE CONTRACT. ADDITIONALLY, SECTION 8.7 OF THE CONTRACT SPECIFICATIONS, DEALING WITH PAYMENT, STATES THAT NO PAYMENT WILL BE MADE FOR ANY FLIGHT BY AN UNAPPROVED PILOT.

THE SERVICES IN QUESTION WERE RENDERED ON SEPTEMBER 27, 1968, WHEN A HELICOPTER WAS REQUESTED FROM ARIZONA HELICOPTERS, INC., FOR FIRE EMERGENCY USE AT TUCSON, ARIZONA. THE CHARGE IN QUESTION, FOR WHICH A PROPERLY PREPARED INVOICE HAS BEEN SUBMITTED, IS IN THE AMOUNT OF $672 ($604.80 NET) AND WAS INCURRED WHEN THE REQUESTED HELICOPTER WAS FERRIED FROM THE GRAND CANYON, WHERE IT WAS LOCATED WHEN THE REQUEST WAS RECEIVED, TO TUCSON FOR USE AT THAT LOCATION. ALTHOUGH THE PILOT WHO FLEW THE REQUESTED HELICOPTER FROM GRAND CANYON TO TUCSON WAS APPARENTLY QUALIFIED AS A PILOT IN ACCORDANCE WITH THE TERMS OF THE PERSONNEL PILOT REQUIREMENTS OF SECTION VI OF THE CONTRACT SPECIFICATIONS IN THAT HE POSSESSED THE REQUIRED LICENSES, EXPERIENCE, AND HEALTH QUALIFICATIONS, HE WAS NOT FORMALLY APPROVED BY THE CONTRACTING OFFICER AS REQUIRED BY THE CONTRACT UNTIL OCTOBER 16, 1968, SOME 2-1/2 WEEKS AFTER THE SUBJECT FLIGHT. IT IS THIS LACK OF FORMAL APPROVAL WHICH LED TO THE DOUBT AS TO THE PROPRIETY OF THE PAYMENT OF THE INVOICE.

YOU RECOMMEND APPROVAL FOR PAYMENT ON THE GROUND THAT "A MUCH NEEDED SERVICE WAS FURNISHED IN GOOD FAITH BY THE CONTRACTOR UNDER EMERGENCY CONDITIONS AT NO ADDITIONAL COST TO THE GOVERNMENT."

WE RECOGNIZE THAT UNDER A STRICT APPLICATION OF SECTION 8.7 PAYMENT FOR THE SERVICES RENDERED ON SEPTEMBER 27, 1968, IS PRECLUDED. HOWEVER, IN OUR OPINION, THE CONTRACT REQUIREMENT FOR PILOT APPROVAL MUST BE TEMPERED BY THE FACT THAT THE PILOT WAS A QUALIFIED HELICOPTER PILOT WHO RECEIVED FORMAL APPROVAL ABOUT 2-1/2 WEEKS AFTER THE FLIGHT. THEREFORE, IT MAY BE SAID, FOR ALL PRACTICAL PURPOSES, THAT THE PILOT WOULD HAVE BEEN APPROVED BEFORE THE FLIGHT HAD THE CONTRACTING OFFICER BEEN AWARE OF THE SITUATION. WE BELIEVE THAT THE INTENT AND PURPOSE OF THE CONTRACT IN THIS REGARD WAS TO ASSURE FLIGHT PERFORMANCE BY QUALIFIED PILOTS AND THAT APPROVAL WAS BUT AN ADMINISTRATIVE CONTROL OVER THAT REQUIREMENT. IN THIS VIEW, AND SINCE THE SERVICES WERE RENDERED IN GOOD FAITH UNDER EMERGENCY CONDITIONS, THE INVOICE MAY BE CERTIFIED FOR PAYMENT AS ADMINISTRATIVELY RECOMMENDED.