B-176529, AUG 30, 1972

B-176529: Aug 30, 1972

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SINCE THE INTENT OF THE PROVISION IN THE CONTRACT REQUIRING PREFLIGHT APPROVAL OF PILOTS IS TO ASSURE PERFORMANCE BY QUALIFIED PILOTS AND THAT APPROVAL WAS BUT AN ADMINISTRATIVE CONTROL OVER THAT REQUIREMENT. BELIEVES THAT THE CONTRACTOR IS ENTITLED TO PAYMENT FOR INITIAL FERRY TIME TO THE FIRE AREA DESPITE THE LACK OF FORMAL APPROVAL BEFORE THE FLIGHT. SINCE NO COMMITMENT WAS MADE TO PAY FERRY TIME FROM TUCSON. CLAIMANT MAY BE PAID FERRY FEES FROM THE POINT WHERE THE HELICOPTER WAS LOCATED AFTER THE SERVICES WERE COMPLETED TO THE POINT OF DEPARTURE FOR THE SERVICES. WAS PROPERLY MADE TO THE COMPANY. THAT NEITHER THE HELICOPTER NOR THE PILOT WERE APPROVED FOR FOREST SERVICE USE PRIOR TO ARRIVAL IN ALBUQUERQUE (ALTHOUGH BOTH WERE APPROVED SHORTLY THEREAFTER).

B-176529, AUG 30, 1972

FEES - DETERMINATION DECISION REGARDING THE PAYMENT OF A CLAIM BY EVERGREEN HELICOPTERS, INC., FOR FEES REPRESENTING HELICOPTER FERRY FEES UNDER A FIRE ORDER ISSUED BY AN OFFICER OF THE U.S. FOREST SERVICE. SINCE THE INTENT OF THE PROVISION IN THE CONTRACT REQUIRING PREFLIGHT APPROVAL OF PILOTS IS TO ASSURE PERFORMANCE BY QUALIFIED PILOTS AND THAT APPROVAL WAS BUT AN ADMINISTRATIVE CONTROL OVER THAT REQUIREMENT, THE COMP. GEN. BELIEVES THAT THE CONTRACTOR IS ENTITLED TO PAYMENT FOR INITIAL FERRY TIME TO THE FIRE AREA DESPITE THE LACK OF FORMAL APPROVAL BEFORE THE FLIGHT. HOWEVER, SINCE NO COMMITMENT WAS MADE TO PAY FERRY TIME FROM TUCSON, ARIZ., TO MCMINNVILLE, ORE., PAYMENT FOR THAT PORTION OF THE CLAIM SHOULD BE MADE IN ACCORDANCE WITH THE USUAL PRACTICE FOLLOWED BY THE HELICOPTER RENTAL INDUSTRY AND MT. HOOD NATIONAL FOREST. ACCORDINGLY, CLAIMANT MAY BE PAID FERRY FEES FROM THE POINT WHERE THE HELICOPTER WAS LOCATED AFTER THE SERVICES WERE COMPLETED TO THE POINT OF DEPARTURE FOR THE SERVICES.

TO MR. ARVIN L. WHITE:

YOUR LETTER OF JUNE 21, 1972, WITH ENCLOSURES, REQUESTS AN ADVANCE DECISION PURSUANT TO 31 U.S.C. 82(D) AS TO WHETHER INVOICE NO. 2730 IN THE AMOUNT OF $6,337.50, REPRESENTING 7.5 HOURS OF HELICOPTER FERRY TIME AT $845 PER HOUR FROM FT. WORTH, TEXAS, TO ALBUQUERQUE, NEW MEXICO, UNDER FIRE ORDER NO. 03-30-490, MAY BE CERTIFIED FOR PAYMENT TO EVERGREEN HELICOPTERS, INC. YOU ALSO ASK IF INVOICE NO. 2561 IN THE AMOUNT OF $12,750.00 FOR 15 HOURS ADDITIONAL FERRY TIME AT $850 PER HOUR FROM TUCSON, ARIZONA, TO MCMINNVILLE, OREGON, WAS PROPERLY MADE TO THE COMPANY.

YOU STATE THAT A DULY AUTHORIZED FOREST SERVICE OFFICER ISSUED THE FIRE ORDER ON JUNE 29, 1971, PURSUANT TO THE TERMS OF AN AIRCRAFT RENTAL AGREEMENT WITH THE COMPANY; THAT PURSUANT TO SUCH ORDER THE COMPANY'S NEW BELL TYPE 205A HELICOPTER LEFT THE BELL PLANT AT FORT WORTH, TEXAS, ON JULY 1, 1971, AND ARRIVED AT ALBUQUERQUE, NEW MEXICO, ON THE SAME DAY; THAT NEITHER THE HELICOPTER NOR THE PILOT WERE APPROVED FOR FOREST SERVICE USE PRIOR TO ARRIVAL IN ALBUQUERQUE (ALTHOUGH BOTH WERE APPROVED SHORTLY THEREAFTER); AND THAT THE HELICOPTER WAS SUBSEQUENTLY FERRIED ON JULY 5, 1971, TO ITS HOME BASE AT MCMINNVILLE, OREGON, AFTER THE FIRE SERVICES WERE FURNISHED.

YOU FURTHER STATE THAT THE RENTAL AGREEMENT PROVIDES THAT ALL AIRCRAFT AND PILOTS HAVE TO BE APPROVED PRIOR TO BEING USED BY THE FOREST SERVICE; THAT THE AGREEMENT DOES NOT STIPULATE THE MANNER FOR COMPUTING FERRY TIME; AND THAT THE PRACTICE FOLLOWED BY RENTAL OPERATORS IN PRIVATE INDUSTRY AND THE MT. HOOD NATIONAL FOREST IS TO ALLOW PAYMENT FOR ALL "ORDERED FERRY TIME" FROM THE POINT OF DEPARTURE TO THE FIRE AREA AND, AFTER SERVICES HAVE BEEN FURNISHED, FROM THE FIRE AREA BACK TO THE POINT OF DEPARTURE.

IT IS THE LACK OF PRIOR APPROVAL OF THE AIRCRAFT AND PILOT WHICH LED TO DOUBT CONCERNING THE PROPRIETY OF THE PAYMENT FOR INITIAL FERRY TIME FROM FT. WORTH TO ALBUQUERQUE UNDER INVOICE NO. 2730.

IN THIS CONNECTION, YOU CITE B-169899, JULY 2, 1970, WHICH INVOLVED THE PROPRIETY OF CERTIFYING PAYMENT FOR PILOT SERVICES UNDER A SIMILAR FOREST SERVICE CONTRACT FOR HELICOPTER SERVICES, AS AUTHORITY TO PERMIT PAYMENT UNDER INVOICE NO. 2730. IN THAT CASE, WE NOTED THAT THE INTENT OF THE PROVISION IN THAT CONTRACT REQUIRING PREFLIGHT APPROVAL OF PILOTS WAS TO ASSURE PERFORMANCE BY QUALIFIED PILOTS AND THAT APPROVAL WAS BUT AN ADMINISTRATIVE CONTROL OVER THAT REQUIREMENT. IN THIS VIEW, AND AS THE SERVICES IN QUESTION THERE WERE RENDERED IN GOOD FAITH UNDER EMERGENCY CONDITIONS, WE HELD THAT PAYMENT COULD BE MADE FOR THE WORK DESPITE THE LACK OF FORMAL APPROVAL OF THE PILOT'S QUALIFICATIONS BEFORE THE FLIGHT. BASED ON THIS RATIONALE, WE BELIEVE THAT THE CONTRACTOR WAS ENTITLED TO PAYMENT FOR INITIAL FERRY TIME TO THE FIRE AREA IN THE SUBJECT CASE DESPITE THE LACK OF FORMAL APPROVAL OF THE PILOT AND AIRCRAFT BEFORE THE FLIGHT. ACCORDINGLY, INVOICE NO. 2730 MAY BE CERTIFIED FOR PAYMENT AT THE RATES ESTABLISHED AT THE TIME OF INSPECTION, AS PROVIDED FOR BY THE TERMS OF THE AGREEMENT. IN THIS CONNECTION, WE NOTE THAT THE AIRCRAFT DESCRIPTION AND PILOT QUALIFICATIONS FORM SHOWS AN HOURLY RATE OF $850 FOR FERRY TIME INSTEAD OF THE $845 RATE SHOWN IN THE INVOICE.

WHILE THE CONTRACTOR IS ENTITLED TO PAYMENT FOR 7.5 HOURS OF INITIAL FERRY TIME, IT IS OUR OPINION THAT THERE IS AN EXISTING DEBT OWED BY THE COMPANY TO THE GOVERNMENT BECAUSE OF THE CONCERN'S RECEIPT OF AN EXCESSIVE PAYMENT FOR 15 HOURS OF FERRY TIME TO MCMINNVILLE, OREGON, UNDER INVOICE NO. 2561.

IN THIS REGARD, THE RECORD SHOWS THAT PAYMENT WAS MADE FOR FERRY TIME OF THE NEW HELICOPTER TO ITS HOME BASE AT MCMINNVILLE, BECAUSE THE CERTIFYING OFFICER BELIEVED THAT SUCH FLIGHT WAS AGREED TO BY THE ORDERING FOREST SERVICE OFFICER, AND THE RENTAL AGREEMENT DID NOT HAVE SPECIFIC PROVISIONS FOR PAYMENT OF FERRY TIME. HOWEVER, THE RECORD ALSO CONTAINS A STATEMENT OF THE FOREST SERVICE OFFICER WHO ISSUED THE SUBJECT FIRE ORDER. THAT OFFICER STATES THAT THERE WAS NO DISCUSSION OF, OR COMMITMENT TO PAY, FERRY TIME TO THE COMPANY FROM THE FIRE AREA TO MCMINNVILLE AFTER THE FIRES WERE OVER. THE RENTAL AGREEMENT PROVIDES THAT WHEN AN ORDER IS PLACED WITH THE OPERATOR UPON WHICH HE PERFORMS A SERVICE, SUCH TRANSACTION IS AGREED TO INCLUDE ALL ITEMS AND CONDITIONS STATED IN THE AGREEMENT.

SINCE THE ORDERING OFFICER DENIES HAVING MADE ANY COMMITMENT TO PAY FERRY TIME FOR THE COMPLETE TRIP TO MCMINNVILLE, AND NO PROVISION IS CONTAINED IN THE AGREEMENT WHICH WOULD GOVERN SUCH PAYMENT, WE BELIEVE THE USUAL PRACTICE FOLLOWED BY THE HELICOPTER RENTAL INDUSTRY AND MT. HOOD NATIONAL FOREST SHOULD BE APPLIED FOR PAYMENT TO THE COMPANY OF FERRY TIME AFTER THE SERVICES WERE COMPLETED. SEE WILLISTON, CONTRACTS, SECTION 651. UNDER SUCH PRACTICE THE CONTRACTOR WAS ENTITLED TO BE PAID FOR A RETURN FLIGHT FROM TUCSON, ARIZONA, WHERE THE HELICOPTER WAS LOCATED AFTER COMPLETION OF THE SERVICES, TO FT. WORTH, TEXAS, THE POINT OF DEPARTURE FOR THE SERVICES. IN VIEW THEREOF, HELICOPTER FLIGHT TIME BETWEEN TUCSON AND FT. WORTH SHOULD BE ADMINISTRATIVELY DETERMINED AND THE AMOUNT WHICH WAS PROPERLY FOR PAYMENT FOR SUCH TIME SHOULD BE COMPUTED AT THE ESTABLISHED RENTAL RATE (APPARENTLY $850 PER HOUR). WHEN SUCH AMOUNT IS DETERMINED, THE OVERPAYMENT MADE UNDER INVOICE NO. 2561 SHOULD BE COLLECTED FROM EVERGREEN EITHER BY SET-OFF AGAINST THE SUM OWED THE CONTRACTOR UNDER INVOICE NO. 2730 OR BY OTHER MEANS.