[Protest of Army Contract Award for Helicopters]

A-56662, AUGUST 14, 1934, 14 COMP. GEN. 129

CONTRACTS - AIR MAIL - FORCED LANDINGS AS THE CONTRACTS FOR TRANSPORTATION OF MAIL BY AIR PROVIDE FOR THE PAYMENT FOR SUCH SERVICE AT A MUCH HIGHER RATE THAN FOR RAIL OR OTHER LAND TRANSPORTATION AND AUTHORIZE A DEDUCTION WHENEVER A LESSER SERVICE IS FURNISHED, THE CONTRACTOR IS NOT ENTITLED TO ANY ADDITIONAL COMPENSATION OR REIMBURSEMENT FOR ANY EXPENSES RESULTING FROM A FORCED LANDING SHORT OF DESTINATION, BUT, ON THE CONTRARY, THE CONTRACT WOULD REQUIRE A DEDUCTION TO BE MADE FROM THE CONSIDERATION OTHERWISE PROVIDED IN THE CONTRACT, THE AMOUNT OF SUCH DEDUCTION TO BE DETERMINED BY THE POSTMASTER GENERAL, TAKING INTO CONSIDERATION THE LESSER SERVICE RENDERED, THE DELAY, AND THE DAMAGES, IF ANY, TO THE MAIL OR TO THE UNITED STATES.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, AUGUST 14, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER WITHOUT DATE AS FOLLOWS:

IN THE PERFORMANCE OF THE TRANSPORTATION OF MAIL BY AIRCRAFT, PLANES ARE FREQUENTLY FORCED DOWN, ESPECIALLY DURING THE WINTER MONTHS, BY WEATHER CONDITIONS AND, IN MANY INSTANCES, THE MAIL IS CARRIED BY AUTOMOBILE BY THE CARRIER FROM THE POINT OF FORCED LANDING TO THE TERMINUS OF THE TRIP OR TO SOME POINT ALONG THE LINE OF FLIGHT WHERE WEATHER CONDITIONS HAVE IMPROVED AND FLIGHT CAN BE RESUMED.

THE CARRIER BY DOING THIS MATERIALLY ADVANCES THE MAIL AND RENDERS AN IMPORTANT SERVICE TO THE POST OFFICE DEPARTMENT; WHILE, IF THE MAILIS HELD FOR TRAIN DISPATCH, SERIOUS DELAY MIGHT RESULT DUE TO MISSING IMPORTANT PLANE AND RAIL CONNECTIONS OR CITY DELIVERY SERVICE.

WHEN THIS TYPE OF SERVICE IS PERFORMED THE CARRIER IS CONFRONTED WITH THE EXPENSE NOT ONLY FOR AUTOMOBILE HIRE BUT ALSO WITH THE ADDITIONAL EXPENSE OF FERRYING HIS PLANE TO THE PROPER POINT ON THE ROUTE IN ORDER TO HAVE IT AVAILABLE FOR A SUCCEEDING SCHEDULE.

IN THE PAST THIS OFFICE HAS CERTIFIED PAYMENT FOR AUTOMOBILE HAULS AT THE AIRPLANE RATE WHERE THE DISTANCE INVOLVED WAS LESS THAN FIFTY PERCENT OF THE DISTANCE BETWEEN THE SCHEDULED STOP POINTS WHERE THE PLANE WAS DOWN, AND WHERE THE CAUSE OF FORCED LANDING WAS DUE TO WEATHER CONDITIONS, PROVIDED SUCH HAUL WAS MADE IN THE DIRECTION OF THE NEXT STOP POINT. WAS ALSO THE POLICY OF THIS OFFICE TO CONSIDER PAYMENT FOR THIS TYPE OF SERVICE BECAUSE OF WEATHER CONDITIONS WHERE THE DISTANCE EXCEEDED FIFTY PERCENT OF THE DISTANCE BETWEEN STOP POINTS WHEN IMPORTANT CONNECTIONS WERE MADE THAT WOULD HAVE BEEN MISSED HAD THE MAIL BEEN TRAINED.

UNDER DATE OF JUNE 20, 1934, THE POST OFFICE DEPARTMENT DIVISION OF THE GENERAL ACCOUNTING OFFICE REFERRED TO TRIP NO. 4 OF MAY 24, 1934, BY THE CENTRAL AIRLINES, INC., ON AM-14 WHEN A FORCED LANDING WAS MADE AT FREDERICK, MARYLAND, AND THE MAIL WAS TRANSPORTED BY AUTOMOBILE FROM THAT POINT TO WASHINGTON, D.C., AND STATED THAT "IT IS THOUGHT BY THIS OFFICE THAT PAYMENT FOR TRANSPORTATION OF MAIL BY AUTOMOBILE SHOULD NOT BE MADE AT THE AIRPLANE RATE.' ACCORDINGLY, ONLY $2,824.35 WAS ALLOWED INSTEAD OF $2,845.29 AS CERTIFIED ON THE DEPARTMENT'S JOURNAL OF JUNE 9, 1934. SUBSEQUENTLY, AN ADDITIONAL ALLOWANCE OF $10.47 WAS MADE COVERING THE DISTANCE BETWEEN MCCONNELLSBURG, PENNSYLVANIA, AND FREDERICK, MARYLAND, THE DISTANCE BETWEEN THESE POINTS NOT HAVING BEEN KNOWN BY THE GENERAL ACCOUNTING OFFICE AT THE TIME OF THE INITIAL ALLOWANCE. THUS THE TOTAL AMOUNT DISALLOWED FOR FAILURE TO TRANSPORT THE MAIL BY AIRPLANE FROM FREDERICK, MARYLAND, TO WASHINGTON, D.C., WAS $10.47.

YOUR REVIEW OF THIS PARTICULAR CASE AND OF THE SUBJECT IN GENERAL IS DESIRED IN ORDER THAT A PROPER COURSE MAY BE SETTLED UPON WHICH WILL BE SATISFACTORY FROM AN ACCOUNTING STANDPOINT AND AT THE SAME TIME MAKE FOR EFFICIENT ADMINISTRATION OF THE AIR-MAIL SERVICE.

IN THE PARTICULAR INSTANCE UNDER DISCUSSION THIS DEPARTMENT HAS THE VIEW THAT HAVING INCURRED THE OBLIGATION TO PAY, AS SUBSEQUENTLY SETTLED BY THE GENERAL ACCOUNTING OFFICE, THE SUM OF $2,834.82 TO PROCURE THE RAPID TRANSPORTATION OF THE MAIL INVOLVED BY AIR FROM DETROIT, MICHIGAN, TO FREDERICK, MARYLAND, THE EXPENDITURE OF $10.47 ADDITIONAL FOR THE MOST EXPEDITIOUS RELAYING OF THE MAIL FROM FREDERICK, MARYLAND, TO WASHINGTON, D.C., WAS NOT ONLY JUSTIFIABLE BUT THE ONLY COURSE CONSISTENT WITH GOOD ADMINISTRATION. IT IS NOT BELIEVED THAT THE DEPARTMENT, ACTING INDEPENDENTLY OF THE AIR-MAIL CONTRACTOR, FOR THE PARTICULAR OCCASION ONLY, COULD HAVE PROCURED THE PROMPT FORWARDING OF THE MAIL TO WASHINGTON, FROM THE LANDING FIELD IN FREDERICK, UNDERSTOOD TO BE A DISTANCE OF FORTY- FIVE MILES, ENTAILING THE DEADHEAD RETURN OF THE VEHICLE, FOR LESS THAN $10.47. THE ONLY OTHER ALTERNATIVE WOULD APPEAR TO HAVE BEEN TO SEND THE MAIL BY TRAIN ENTAILING SOME EXPENSE FOR TRANSPORTATION FROM THE AIR FIELD TO THE RAILWAY STATION AND NO DOUBT CAUSING A CONSIDERABLE DELAY IN THE TRANSPORTATION OF THE MAIL TO WASHINGTON. THE PROVISION OF LAW INCORPORATED IN SECTION 665 OF TITLE 31 OF THE U.S.C. PROHIBITING ANY OFFICER OF THE GOVERNMENT FROM ACCEPTING VOLUNTARY SERVICE FOR THE GOVERNMENT WOULD APPEAR TO BE APPLICABLE TO THIS MATTER.

BY CONTRACT EXECUTED MAY 11, 1934, THE CENTRAL AIRLINES, INC., AGREED TO TRANSPORT MAIL BY AIR OVER ROUTE NO. 14, WASHINGTON, D.C., VIA PITTSBURGH, PENNSYLVANIA, AKRON, OHIO, CLEVELAND, OHIO, AND DETROIT, MICHIGAN, AND RETURN, AT A RATE OF $0.238 PER AIRPLANE MILE FOR 20 CUBIC FEET OF AIR MAIL SPACE WHICH CONTRACT CONTAINED THE FOLLOWING CONDITIONS:

FIRST. TO CARRY THE MAILS OFFERED WITH DUE CELERITY, CERTAINTY, AND SECURITY, AND IN SAFE AND SUITABLE AIRCRAFT ON THE ROUTE DESCRIBED AND ON THE SCHEDULES SET FORTH BY THE POSTMASTER GENERAL, THE CONTRACTOR TO RECEIVE AND DELIVER THE MAILS AT THE DESIGNATED FIELDS AND POINTS ON SAID FIELDS AS APPROVED BY THE POSTMASTER GENERAL.

FIFTH. IT IS HEREBY ALSO STIPULATED AND AGREED THAT DEDUCTIONS IN PAY WILL BE MADE FOR SUFFERING THE MAILS TO BECOME WET, INJURED, OR DESTROYED, OR WHEN A GRADE OF SERVICE IS RENDERED INFERIOR TO THAT STIPULATED IN THE CONTRACT, OR FOR THE LOSS OF OR DEPREDATION UPON THE MAILS IN THE CUSTODY OF THE CONTRACTOR OR HIS AGENTS, PROVIDED THE LOSS IS OCCASIONED BY THE FAULT OF ANY OF THEM.

THE SERVICE REQUIRED BY THIS CONTRACT IS THE TRANSPORTATION OF THE MAIL BY AIRPLANE BETWEEN THE CITIES NAMED IN THE CONTRACT AND WHEN ANY LESSER SERVICE IS FURNISHED THE CONTRACT AUTHORIZES AND CONTEMPLATES DEDUCTIONS TO BE MADE. THE GOVERNMENT'S RIGHT UNDER THE CONTRACT IS AIRPLANE SERVICE AND THE RATE PAYABLE FOR SUCH SERVICE BEING CONSIDERABLY HIGHER THAN THAT FOR TRAIN OR OTHER TYPE OF SERVICE, THE FAILURE TO RENDER SUCH SERVICE AND THE SUBSTITUTION OF LESSER SERVICE, EVEN IF DUE TO AN UNAVOIDABLE OCCURRENCE, IS A RESPONSIBILITY OF THE CONTRACTOR. THE DUTY AND RESPONSIBILITY OF THE CONTRACTOR DO NOT CEASE WHEN A FORCED LANDING IS MADE SHORT OF DESTINATION AND ANY EXPENSE IN TRANSPORTING THE MAILS FROM THAT POINT TO THEIR FINAL DESTINATION OR THE NEXT STATION WHERE AIRPLANE TRANSPORTATION MAY BE AVAILABLE OR THE FERRYING OF THE PLANE TO SOME OTHER POINT FOR REPAIR OR TAKE-OFF IS AN EXPENSE TO BE BORNE BY THE CONTRACTOR AND NOT BY THE GOVERNMENT. ON THE CONTRARY, THE FIFTH PROVISION OF THE CONTRACT, SUPRA, WOULD REQUIRE SOME DEDUCTION TO BE MADE FOR SUCH LESSER SERVICE FROM WHAT WOULD OTHERWISE HAVE BEEN PAYABLE FOR THE COMPLETED SERVICE BY AIRPLANE. THE AMOUNT OF SUCH DEDUCTION IS NOT STIPULATED IN THE CONTRACT AND PRIMARILY WOULD BE A MATTER OF FINDING OF FACTS BY THE POSTMASTER GENERAL, TAKING INTO CONSIDERATION THE HIGHER RATE PAYABLE FOR AIRPLANE SERVICE, THE EXTENT OF THE DELAY IN DELIVERY OF THE MAILS, AND THE DAMAGES, IF ANY, TO THE MAILS OR TO THE UNITED STATE ARISING OUT OF SUCH DELAY. IF THE PERIOD OF DELAY IN DELIVERY IS SO SHORT AS TO BE INCONSEQUENTIAL AND NO DAMAGES ARE INVOLVED, SUCH FACTS APPEARING, THE DEDUCTION NEED NOT BE SUBSTANTIAL. IF YOU WILL CERTIFY TO THIS OFFICE THE FACTS AS FOUND BY YOU IN THE INSTANT MATTER AND, BASED THEREON, YOUR RECOMMENDATION OF THE AMOUNT PROPERLY TO BE DEDUCTED FROM THE AIRPLANE RATE OF $0.238 PER MILE FOR THE DIFFERENCE BETWEEN FREDERICK, MARYLAND, AND WASHINGTON, D.C., BY REASON OF THE LESSER SERVICE RENDERED, ETC., THE MATTER OF CERTIFYING AN ADDITIONAL PAYMENT TO THE CONTRACTOR WILL BE GIVEN CONSIDERATION.