The RUS noted that the information provided by Neptune did not include detailed expense projections or a balance sheet and cash flow projections for the next 5-year period. 3304(a)(3)(A) (2006), which provides for a noncompetitive award to a particular source to maintain that supplier for a national emergency or to achieve industrial mobilization. [21] FI limited its formal conclusions regarding Neptunes financial viability through the 2016 time period because that is what the SPE requested FI to review. Coulson and 10 Tanker protested to our Office, challenging the agencys price and technical evaluations, communications with offerors, and source selection decision. Tr. Specifically, in making her recommendation the SPE stated as follows: General Public policy, the Competition in Contracting Act, and the FAR promote competition to ensure a fair playing field for firms interested in doing business with the Federal government. The Forest Service is not confident that five of the seven contracted NextGen airtankers will be available to fight fires in 2014. See Tr. [1][2][3] The crash resulted in the first hull loss of a Boeing 737 in Australia.[4]. Aircraft capable of meeting these standards and requirements are not readily available and would take a considerable amount of time to be developed and operationally ready for service. AR, Tab 49, J&A, Dec.9, 2013, at 4. . at658), the agency acknowledges that the 9-year, sole-source contract awarded to Neptune was based on the industrial mobilization exception to CICA. [13] The FAM is the Forest Service program office that determines what aviation resources are needed to fulfill the agencys firefighting mission. See FAR 6.302-3; see also Lance Ordnance Co. Inc.; Martin Elecs., Inc., B-246849, B-246952, Mar. This redacted version has been approved for public release. [vital] supplier . The Forest Services procurement of NextGen airtanker services has a long and contentious history. T-137 was purchased in May 2019 by . In my time with Coulson I haven't seen them skimp or cut corners anywhere. By August 2, FI completed its assessment of Neptunes financial viability. While agencies have authority to make noncompetitive awards when necessary to maintain vital sources, they do not have authority to make noncompetitive awards merely because an offeror is unsuccessful in a competitively-conducted procurement, or because such action was promised in a settlement agreement. It offers OTC Link Alternative Trading System, an interdealer quotation and trade messaging system; OTC Dealer, a real-time, front-end application that provides consolidated quotation, trading, and information system to attract and access market liquidity; OTC FIX, which uses the industry standard FIX protocol for quote submission, trading, and routing of execution reports; and OTC Link Electronic Communication Networks (ECN) that acts as the executing party on an agency basis in relation to transactions executed on the ECN's platform. Thereafter, the agency decided to take corrective action by reopening the competition. Accordingly, while the J&A may demonstrate that the Forest Service needs more large airtanker services than it currently has under contract, the J&A completely fails to demonstrate that Neptune must be the supplier of such services or that Neptune currently requires a 9-year sole-source contract to keep it in business as a vital supplier for the agencys post-2017 needs. This time the air tanker descended two times over the fire zone, crashing at 4:14 pm, while executing the second descent in the Fitzgerald River National Park. Its the GODs way of saying with 2020 & the Fires that the Martin Mars are meant to be made Fight Worthy and show the Flames how the Big Girls do it RIGHT!!!!! [19] See FAR 6.304(a)(4). The record shows, however, that the contract subsequently awarded to Neptune included the option of five additional large airtankers, for up to 9 years each, at a total estimated value of approximately $496 million--more than three times greater than what was approved. Nevertheless, USDA argues that it did not act improperly because the sole-source award complied with all applicable procurement statutes and regulations. R. Cromwell Coulson serves as President, Chief Executive Officer, Director of the Company. AR, Tab 72, Neptune Letter to GAO, June 6, 2013. Elin M. Dugan, Esq., Inga Bumbary-Langston, Esq., Shawn S. McGruder, Esq., Mark G. Garrett, Esq., and Melissa D. McClellan, Esq., Department of Agriculture, for the agency. As a final matter, in addition to the fundamental lack of support for the J&As premise that Neptune now requires a 9-year sole-source contract in order to maintain the firm in the future as a vital supplier of aircraft, the record reflects that the J&A was premised on materially inaccurate information. Pursuant to the FAR, the head of a contracting activity only has the authority to approve noncompetitive awards of up to $62.5 million. [35] To the extent Neptune now represents a vital source, it is because of its Legacy contract. Id. Subsequently, the Forest Service amended the NextGen solicitation and received revised proposals from offerors. [17] Id. Although not stated in the award abstract, based on all aircraft and performance period options, the total amount per CLIN was approximately $350-$400 million. Agencies are provided, however, with authority to conduct noncompetitive procurements in specific limited circumstances. Read More. The protesters argue that the sole-source contract awarded to Neptune, which was promised in exchange for Neptune's withdrawal of an earlier bid protest, is not justified. [17] The RUS later prepared a more formal response regarding Neptunes financial stability, but again, merely accepted the financial projections as submitted by Neptune without determining their validity. See FAR 6.3023(b)(iii) (when the quantity required is substantially larger than the quantity that must be awarded in order to meet the objectives of this authority, that portion not required to meet such objectives will be acquired by providing for full and open competition); Honorable Dan Burton, B-265884, Nov. 7, 1995, 1995 U.S. Comp. Today, the company's Coulson Aircrane aviation branch still offers helicopter logging but has expanded its ambitious mandate to include power line construction and forest fire suppression. It returned to the same airport at 1:26 pm. On April 16, the TEB completed its reevaluation of offerors NextGen large airtanker proposals. Consequently, the agency argues, the J&A was not grounded on the agencys belief that Neptune would immediately go out of business without a NextGen contract, but was based on its concern with Neptunes continued availability as a large airtanker supplier after 2017 when its Legacy contract expired. Id. at 53. 14, 1990, 90-1 CPD 273 at 4-5, affd, B-237742.2, June 11, 1990, 90-1 CPD 546; Techplan Corp., B-234161, May 12, 1989, 89-1 CPD 452 at 5. Coulson has not released any additional specific technological modifications or upgrades it is making to the aircraft. Coulson Aviation puts employee and Aircraft safety as Job 1. AR, Tab 44, SPE Memorandum to ASA Regarding Sole-Source Award to Neptune, Dec.2, 2013, at 1-112. See AR, Tab 22, Contracting Officer Letter to RUS, June 25, 2013. The protesters argue that the sole-source contract awarded to Neptune, which was promised in exchange for Neptunes withdrawal of an earlier bid protest, is not justified. Neptune then withdrew its bid protest (the parties settlement agreement was not provided to our Office). Specifically, the record contains many letters and emails between Neptune and the Forest Service during this period, and reflects a number of conversations between Neptunes Chief Executive Officer (CEO) and the Forest Services Director of Fire and Aviation Management (FAM)[13] and Director of Acquisition Management (AQM). The NextGen RFP required aircraft to have a minimum payload of 2,400gallons, and a target of 3,000-5,000 gallons. at 1. AR, Feb. 19, 2014, at 17. AR, Tab 40, Forest Service Email, Nov. 7, 2013, at1-2. [16] The Forest Service believed RUS possessed financial expertise that could be of assistance. at5556. Thus, the agencys J&A inaccurately described the services to be obtained from Neptune on a noncompetitive basis. During a visit by Skies to the water bomber base at Sproat Lake, B.C., two of the four Hawaii Mars engines were receiving maintenance. Our review of an agencys decision to conduct a noncompetitive procurement focuses on the adequacy of the rationale and conclusions set forth in the J&A. 4890 Cherry Creek Road Port Alberni, B.C. It seems like if were interested in creating a balanced source of supply we would award more air tankers to the other legacy contractor, Minden, or add more air tankers to the current Next Gen contractors versus issuing a noncompetitive award to an unsuccessful offeror. On June 3, RUS provided USDA with its financial viability review of Neptune. [12] We dismissed Neptunes challenge to the awards related to CLINs 1-3 because Neptune was not an interested party to challenge awards under line items for which it had not submitted a proposal. A noncompetitive contract was awarded to Neptune on December12. See AR, Jan. 31, 2014, at 55. at 700. [Forest Service] also has two firms on the legacy contract that can supply planes. A stand down may be undertaken when the operator believes there is something which might distract the pilots from safely completing their missions. [28] See AR, Tab 49, Neptune J&A, Dec. 9, 2013, at 1-6. On 6 February 2023, a Boeing 737-300 owned by Coulson Aviation and used as an air tanker crashed in the Fitzgerald River National Park in the Great Southern Region of Western Australia while fighting multiple fires. Neptune Comments, Feb.24, 2014, at 3-5, citing AR, Tab 150, Neptune Financial Assumptions, May 29, 2013 ([b]ased on denial of contracts under the Next Generation Airtanker Services Solicitation, Neptune is now faced with extinction after the expiration of the Legacy Contracts). at 138, 235. With our proprietary technology, multiple aircraft types, and highly experienced attack crews we can fight fires on multiple continents simultaneously. See, e.g., AR, Tab 34, Forest Service Email, Sept. 10, 2013, at 1. [33] In fact, the agency acknowledges that [t]he record demonstrates Neptune did not represent to the Forest Service, that it would immediately go out of business without a NextGen contract. AR, Feb. 19, 2014, at 5 (emphasis in original). With our total integrated approach, we are able to provide our customers with a safe, world-class program, 24 hours a day.. fleet of Boeing 737 FIRELINERS, C-130 Hercules fire bombers, Today News Australia - Night Firefighting (https://youtu.be/7_2ip6H7rsQ). [24] The SPE testified that, in the meetings she attended, she heard no rationale advanced for a sole-source award to Neptune that she had not previously considered, and no rationale that she believed properly justified such an award. We will question those decisions only if the evidence shows that the agency has abused its discretion. Additionally, the agencys apparent belief that an immediate need for NextGen airtankers in 2014 justified the award of a sole-source, 9-year contract on the basis of industrial mobilization is not supported and has no rational basis. The Forest Service will oppose any . The ASA also stated (repeatedly) that his rationale for the sole-source award to Neptune concerned the Forest Services ability to have enough large airtankers available for the 2014 fire season--not the viability of Neptune as a source of supply. Id. Coulson Protest, Feb. 10, 2014, at 55. This will be the third converted 737 for Coulson; the first two are identified as T-137 and T-138. 41 U.S.C. See Agency Post-Hearing Comments, Mar. As relevant here, the settlement agreement stated that: the Forest Service will award the Contract using noncompetitive procedures, pursuant to 41 U.S.C. at735-36 (the agency plans to conduct additional competitions in the coming years under which Neptune would be eligible to compete and could receive awards). When an agency uses noncompetitive procedures under 41 U.S.C. They were short staffed on driver's so . A, Neptune Rate Sheet. It was retired by Southwest in August 2017, and transferred to Coulson Aviation later that month. [31] The USDA contends, citing to our decision in Merlin Intl, Inc., B-310611, Jan. 2, 2008, 2008 CPD 66, that a protester is not an interested party to challenge a sole-source award unless it can meet all of the agencys requirements at the time of the sole-source determination. nature of the acquisition requires use of the authority cited, and [a] description of the market research conducted . The decision issued on the date below was subject to a GAO Protective Order. In this regard, the protesters claim that the agencys actions have been motivated by the desire to fulfill the terms of a settlement agreement and to avoid a lawsuit by Neptune for allegedly breaching that agreement. Your email address will not be published. For example, shortly before or after filing its protest, Neptunes CEO told the FAM Director that the company had made a significant investment in modern large airtankers and would go out of business without a NextGen contract award. Tr. 5. The Forest Service considers Neptune to be a vital supplier of airtankers. These specific C550s were originally modified and equipped with military fire-control radar, sophisticated infrared cameras, custom instrument panels and law enforcement communication packages. The FireLiner conversion is scheduled to be completed in May 2021 in time for the next fire season in North America. at 657-693. Nine offerors, including Neptune, Coulson, 10 Tanker, and Minden, submitted proposals by the February 15, 2012, closing date. Id. As detailed below, the record indicates that the verbal representations of Neptunes CEO concerning the firms financial viability were relied upon by the Forest Service when determining the agencys actions. A settlement agreement promising award of a contract on a sole-source basis in exchange for abandoning ongoing litigation, such as a bid protest, is not a permissible basis for restricting competition and excluding potential offerors. AR, Tab23, RUS Financial Analysis of Neptune, June 26, 2013, at 1-4. All rights reserved. Age. at 441, 451; AR, Tab24, SPE Email to AQM Requesting Additional Neptune Information, July12, 2013, at 1-2. Disclaimer. If the agency determines the award of a contract on a sole-source basis to Neptune for large airtanker services is not necessary or that the contract awarded to Neptune does not reflect the agencys reasonably justified needs, the agency should terminate that contract or modify it as appropriate. [8] Neptunes fuel costs were not included in the 2013 Legacy contract rates, as fuel was again to be government-provided or separately reimbursed. The agency justified the solesource award under 41 U.S.C. Our Office confirmed the withdrawal of Neptunes protest and closed the file without rendering a decision on the protests merits. Specifically, the ASA stated that he wanted to be sure that we could ensure that the Forest Service would be able to meet its mission of responding to forest fires for the 2014 season. OTC Markets Group Inc. was founded in 1904 and is headquartered in New York, New York. The SPE also engaged FI Consulting, an external auditing firm, to perform an independent financial viability analysis of Neptune. While it was conducting the NextGen large airtanker procurement, the Forest . 18, 2014, at 7. Prior to OTC Markets Group, he was a trader and portfolio manager at Carr Securities Corporation, an institutional broker-dealer and market maker. These assertions, however, ignore the possibility or likelihood of Neptune acquiring additional work over the course of the next 4years. Id. The NRE Undersecretary emphasized the importance of large airtankers for wildland firefighting and the Forest Services need for additional airtankers, particularly with regard to the 2014 fire season. AR, Tab 67, NextGen RFP, at M-4. . Absent from the J&A, however, was any discussion regarding Neptunes need for a sole-source contract to remain a source of supply. Overview. Specifically, the protesters argue that: (1) Neptune is not a vital supplier such that the large airtanker industrial base can be maintained without resorting to noncompetitive procurements; and (2)Neptune does not require a sole-source contract to remain a source of large airtankers. Neptune subsequently protested to our Office on May 16 challenging all of the NextGen contract awards. Based upon on our review of the record, including the J&A, its supporting documentation, the agencys submissions in response to these protests, and the testimony of the agencys representatives at the hearing held at our Office, the agency has failed to demonstrate that Neptune requires a sole-source contract to remain a source of large airtanker services for the Forest Service. Although the J&A documents the agencys belief that Neptune is, presently, a vital supplier of large airtanker services under Neptunes Legacy contract,[35] the J&A is devoid of evidence or analysis supporting the need to provide Neptune with a sole-source award for the firm to remain a viable source of supply. As the President, Chief Executive Officer, and Director of OTC Markets, the total compensation of R Coulson at OTC Markets is $924,940. Neptune has supplied Next Gen type planes on the existing legacy contract and others could be added provided it is within the scope of that contract. Tr. The newest addition to our fleet are the Coulson modified 737 FireLiner aircraft. In fact, the ASA testified that the agency plans to conduct additional competitions in the coming years under which Neptune is eligible to compete and could receive awards. The company also provides OTC Markets Real-Time Data products that provides quote, trade, and reference data for OTC Link ATS; OTC Markets Pricing and Reference Data products for detailed view into the securities and issuers within the OTC market; and compliance data products. [38] Any sole-source contract based on urgency presumably would have been 1 year in length (i.e., the 2014 fire season), not 9 years. On June 6, the Forest Service and Neptune entered into a written settlement agreement, under which the agency agreed to award Neptune a sole-source contract for two NextGen large airtankers in exchange for Neptune withdrawing its protest (and thereby ending the CICA stay of the NextGen contract awards). We find this argument to be entirely without merit, and the reliance on FAR 6.304(d) misplaced; an accurate description of the services being obtained on a noncompetitive basis is not limited to the options that must be included when determining the J&As approval authority. Determining whether a party is interested involves consideration of a variety of factors, including the nature of the issues raised, the benefit or relief sought by the protester, and the partys status in relation to the procurement. 3304(a), it is required to execute a written J&A with sufficient facts and rationale to support the use of the cited authority. 4. . Canada V9Y 8E9. See also Federal Acquisition Regulation (FAR) 6.302-3. The adequacy of the rationale and conclusions set forth in the J&A is dependent on the completeness and accuracy of the information included in the J&A. (i) To maintain a facility, producer, manufacturer, or other supplier available for furnishing supplies or services in case of a national emergency or to achieve industrial mobilization. Neptune currently provides eight of nine Legacy airtankers (this includes the two BAe-146 aircraft provided by Neptune for the 2013 fire season). Accordingly, while the agency contends that the J&A did not rely on the FI financial analysis to assess Neptunes long-term viability, neither did the agency rely on any other information when making such an assessment. In sum, the J&A and its supporting documents, as well as the agencys submissions in response to these protests and the testimony of the agency representatives at the hearing held by our Office, demonstrate that the sole-source award to Neptune was promised in exchange for Neptunes withdrawal of an earlier protest, and that there was not a reasonable basis for the agencys action. As detailed below, the Forest Service entered into a settlement agreement with Neptune on the basis that the award of a sole-source, NextGen-type contract was necessary to maintain Neptune as a vital source of large airtankers. AR, Jan. 31, 2014, at 9. D, 2012 NextGen Contract Award Abstract. Specifically, the J&A describes the services to be provided by Neptune as two NextGen large airtankers for up to 9 years, at a total estimated value of $141million. 18, 2014, at7. Net Profit : Trademark Applications . AR, Feb. 19, 2014, at 3-4, 8. . T: (250) 724-7600 F: (250) 723-7766. See 31 U.S.C. There are 6 older and 13 younger executives at OTC Markets. Accordingly, on June 21 the Forest Service informed the SPE of the settlement agreement that the agency had entered with Neptune, and requested that she execute a justification and approval (J&A) for the sole-source award. Protecting Australia from bushfires with our state-of-the-art aerial firefighting fleet, pilots and support staff. . FAR 6.302-3(a)(2)(i). Earth Prop. Tr. AR, Jan. 31, 2014, at 32. . AR, Tab 56, Neptune Legacy Contract, at B-2. GAO Notice of Partial Dismissal (B-406920.8), June 5, 2013. Gen. LEXIS 735 at *12. See Sabreliner Corp., supra. Although the J&A supported an award of two NextGen large airtankers for up to 9 years at a total estimated cost of $141,774,740, the contract actually awarded to Neptune permitted (by mutual agreement) the addition of two more airtankers to the first CLIN and three more airtankers to the second CLIN in each contract year. Maintain Capacity and Employee Skills - The [Forest Service] currently has a supplier base of five firms on the Next Gen contract. Port Alberni, British Columbia coulsonaviationusa.com Joined June 2020 88 Following 2,469 Followers Tweets Tweets & replies Media 4890 Cherry Creek Road Port Alberni, B.C. A, Calculation of Total Estimated Cost. Noncompetitive awards should be limited to only what is needed to achieve the objective, in this case to maintain a vital source of supply . Fort Worth, TX: 69 : PROFESSIONAL AIRLINE SERVICES: Doral, FL: 42 : SOUTHWEST AIRLINES: Dallas, TX: 41 : UNITED . Michael Strain is one of East Africa's most active corporate/M&A lawyers; based in Tanzania but also covering the wider region. Similarly, if the protesters were to prevail in their challenge and the agency decided to meet its requirements by exercising options available to it under the NextGen contract, the protesters would be interested and eligible to receive such orders. Decisions as to which suppliers should be included in a mobilization base, and which restrictions are required to meet the needs of industrial mobilization, involve complex judgments that are generally left to the discretion of the federal agencies. 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