B-135644, DEC 1, 1967

B-135644, DEC 1, 1967

PRECIS-UNAVAILABLE

MARY M. RYDQUIST, DEPARTMENT OF THE INTERIOR:

WE HAVE CONSIDERED YOUR LETTER OF SEPTEMBER 21, 1967, IN WHICH YOU ASKED FOR OUR DECISION ON THE PROPRIETY OF YOUR CERTIFYING FOR PAYMENT THE ENCLOSED STANDARD FORM 44, PURCHASE ORDER-INVOICE-VOUCHER, SUBMITTED BY CUTTER FLYING SERVICE, INC., IN THE TOTAL AMOUNT OF $2,351.25. CONCLUDE THAT YOU MAY PROPERLY CERTIFY THE VOUCHER FOR PAYMENT.

THE STANDARD FORM 44, PURCHASE ORDER NO. 106168, SHOWS AN ORDER FOR SERVICE FOR THE BUREAU OF LAND MANAGEMENT IN CONNECTION WITH A FOREST FIRE IN THE VICINITY OF FLATHEAD, MONTANA. THE FORM IS SIGNED BY JAMES F. KELLY, RANGE CONSERVATIONIST, ELSEWHERE IDENTIFIED AS THE OFFICER-IN CHARGE. C. J. BARNES, ACCOUNTANT, SIGNED THE INVOICE FOR THE CUTTER FLYING SERVICE. THE SERVICE REQUIRED WAS AIRCRAFT HIRE TO TRANSPORT AN EMERGENCY SHIPMENT OF NINE RADIOS AND ONE BATTERY CHARGER FROM ALBUQUERQUE, NEW MEXICO, TO BOISE, IDAHO, ON AUGUST 16, 1967, AND TO TRANSPORT EIGHT MEN FROM ALBUQUERQUE TO KALISPELL, MONTANA, ON AUGUST 18. DAILY FLIGHT REPORTS IN SUPPORT OF THE INVOICE RECITE THE PERTINENT CONTRACT OR AGREEMENT NUMBERS, IDENTIFY THE PLANES USED, SHOW TAKEOFF AND LANDING TIMES, TOTAL ACTUAL FLIGHT TIME, HOURLY FLIGHT RATES, AND TOTAL CHARGES. MR. KELLY SIGNED THE FLIGHT REPORTS TO CERTIFY RECEIPT OF THE SERVICES; MR. BARNES SIGNED THEM FOR THE CARRIER TO CERTIFY THE CORRECTNESS OF THE CHARGES AND THAT PAYMENT HAD NOT BEEN RECEIVED.

THE AUGUST 16 FLIGHT, UNDER OFFER NO. 30-010-AO-2, DATED MARCH 1, 1967, WAS MADE IN A BEECHCRAFT C-55, FEDERAL AVIATION AGENCY (FAA) REGISTRATION NO. 5702V; THE ACTUAL FLYING TIME WAS EIGHT HOURS AT A FLIGHT RATE OF $90 PER HOUR, TOTAL $720. THE SECOND FLIGHT, IN A 1967 BEECHCRAFT B-80, FAA REGISTRATION NO. 7806L, COVERED BY SUPPLEMENTAL OFFER NO. 30-010-AO-1, DATED AUGUST 18, 1967, TOOK 12 HOURS AND 5 MINUTES ACTUAL FLYING TIME AT AN HOURLY RATE OF $135, TOTAL CHARGE $1,631.25.

BECAUSE THESE FLIGHTS WERE BETWEEN CITIES SERVICED BY VARIOUS COMMERCIAL AIRCRAFT COMPANIES IN REGULARLY SCHEDULED SERVICE, YOU QUESTION THE CORRECTNESS OF BILLING ON STANDARD FORM 44 UNDER THE AUTHORITY GRANTED THE BUREAU OF LAND MANAGEMENT IN OUR DECISION OF OCTOBER 19, 1966, B-135644. YOU INTERPRET THAT AUTHORITY AS EXTENDING ONLY TO INSTANCES IN WHICH CARGO AND PERSONNEL ARE DELIVERED TO FIRE SITES OR IN WHICH THE PLANES ARE UTILIZED AS INSTRUMENTALITIES IN FIRE DETECTION AND CONTROL. YOU SUGGEST THAT HERE THE BILLING SHOULD HAVE BEEN MADE ON APPROPRIATE TRANSPORTATION VOUCHERS SUPPORTED BY A GOVERNMENT BILL OF LADING AND A TRANSPORTATION REQUEST AND THE SERVICE ARRANGEMENTS SHOULD HAVE BEEN REDUCED TO WRITING IN THE FORM OF A CHARTER AGREEMENT SIGNED BY BOTH PARTIES.

WE UNDERSTAND THAT THE BUREAU OBTAINS FROM QUALIFIED SOURCES OF NEEDED EQUIPMENT OFFERS OF SERVICE WHICH BIND NEITHER PARTY BUT WHICH ARE ACTIVATED AS NEEDED, IF THE OFFEROR'S EQUIPMENT IS AVAILABLE. THE OFFERS ARE IN WRITING ON BUREAU OF LAND MANAGEMENT FORM NO. 1510-15 (JANUARY 1967), ENTITLED "OFFER FOR HIRE OF AIRCRAFT WITH PILOT." THE OFFERS ARE NUMBERED AND DATED, THEY RECITE THE TERM DURING WHICH THEY ARE OPEN, DESCRIBE THE AIRCRAFT OFFERED, THE SPAN OF ADVANCE NOTICE REQUIRED FOR SERVICE, THE HOURLY FLIGHT RATE, ETC. EACH OFFER IS REQUIRED TO BE SIGNED BY THE OFFEROR. PRINTED CONDITIONS ON THE REVERSE OF THE FORM EXPLAIN THE CIRCUMSTANCES UNDER WHICH THE OFFEROR NEED NOT ACCEPT THE BUREAU'S ORDER FOR SERVICE, PRESCRIBE THE MANNER OF ISSUING SUCH ORDERS AND THE METHOD OF COMPUTING PAYMENT, AND DESCRIBE OTHER RELEVANT TERMS CONCERNING THE OFFEROR'S UNDERTAKING.

IN THIS CASE, THE PRESIDENT OF CUTTER FLYING SERVICE SIGNED THE TWO OFFERS FOR HIRE. OFFER NO. 30-010-AO-2, DATED MARCH 1, 1967, DESCRIBES THREE AIRCRAFT OFFERED ON ONE HOUR'S NOTICE BETWEEN MARCH 1 AND DECEMBER 31, 1967. ONE OF THE DESCRIBED PLANES IS A 1966 BEECHCRAFT C 55, FAA NO. N-5702V, OFFERED AT A FLIGHT RATE OF $90 PER HOUR. SUPPLEMENTAL OFFER NO. 30-010-AO-1, DATED AUGUST 18, 1967, OFFERED FROM THAT DATE TO DECEMBER 31, 1967, A 1967 BEECHCRAFT B-80, FAA NO. N7806L, AT A RATE OF $135 PER HOUR. THESE ARE THE TWO PLANES IDENTIFIED ON THE DAILY FLIGHT REPORTS ATTACHED TO CUTTER'S INVOICE. THERE IS NO QUESTION THAT THE GOVERNMENT ORDERED AND RECEIVED THE SERVICE AND THAT THE BILLED CHARGES ARE COMPUTED AT THE RATES AGREED UPON BY THE PARTIES.

IN OUR DECISION OF OCTOBER 19, 1966, WE AUTHORIZED THE BUREAU TO USE STANDARD FORM 44 IN THE PROCUREMENT OF CERTAIN AIR TRANSPORTATION (COSTING NOT MORE THAN $2,500) NECESSARY TO ITS FIRE PRESUPPRESSION AND SUPPRESSION PROGRAMS INSTEAD OF GOVERNMENT BILLS OF LADING, TRANSPORTATION REQUESTS, AND APPROPRIATE VOUCHER FORMS. AMONG THE FACTORS INFLUENCING OUR CONCLUSION WERE THE OBVIOUS ONES OF THE KINDS OF SERVICE REQUIRED: FOR EXAMPLE, CARGO AND PERSONNEL TRANSPORTATION TO FIRE SITES AND ACTIVE ENGAGEMENT OF THE AIRCRAFT AS INSTRUMENTALITIES IN FIRE DETECTION AND CONTROL. HOWEVER, WE ALSO CONSIDERED THE FACT THAT "SMALL OPERATORS," UTILIZING THE SMALL PLANES MOST EFFECTIVE IN THE BUREAU'S FIRE PROGRAMS, WERE INVOLVED.

SMALL OPERATORS ARE THOSE FLYING AIRCRAFT HAVING A GROSS TAKEOFF WEIGHT OF LESS THAN 12,500 POUNDS. THEY ARE EXEMPT FROM MUCH OF THE ECONOMIC REGULATION PRESCRIBED UNDER THE PROVISIONS OF THE FEDERAL AVIATION ACT OF 1958, AS AMENDED, 49 U.S.C. 1301, 1371 ET. SEQ. THEY ARE NOT CERTIFICATED BY THE CIVIL AERONAUTICS BOARD AND THEY ARE NOT REQUIRED TO FILE TARIFFS OF RATES AND CHARGES WITH THE BOARD. 14 CFR 298.3, 298.11.

SINCE THESE OPERATORS DO NOT MAINTAIN REGULARLY SCHEDULED SERVICE AND DO NOT PUBLISH TARIFFS, IT MAY BE EXPECTED THAT THEY ARE GENERALLY UNFAMILIAR WITH CONVENTIONAL GOVERNMENT TRANSPORTATION PROCUREMENT INSTRUMENTS.

WE CONCLUDED IN THE OCTOBER 19, 1966, DECISION THAT THE CONDITIONS PRESCRIBED FOR USE OF STANDARD FORM 44 WERE SUBSTANTIALLY SATISFIED BY THE BUREAU'S UNIQUE AIRCRAFT SERVICE REQUIREMENTS IN ITS FIRE PRESUPPRESSION AND SUPPRESSION PROGRAMS, AND BY THE NEED TO ELIMINATE THE ADMINISTRATIVE PROBLEMS THOSE REQUIREMENTS CREATED FOR THE SMALL OPERATORS SERVING THE BUREAU. THE AUTHORIZATION WE THEREFORE GAVE FOR THE USE OF STANDARD FORM 44 AND THE DISCONTINUANCE OF GOVERNMENT BILLS OF LADING AND TRANSPORTATION REQUESTS AS BASIC PROCURING INSTRUMENTS IS BROAD ENOUGH TO ENCOMPASS THE PRESENT KIND OF SITUATION.

ACCORDINGLY, THE USE OF STANDARD FORM 44 IN PROCURING AND INVOICING THIS SERVICE IS PROPER, AND YOU MAY CERTIFY THE PRESENT BILLING ON SUCH FORM, RETURNED HEREWITH, AS BEING PROPER FOR PAYMENT.