GAO rules against the Forest Service in SuperTanker contracting protest

The Government Accountability Office said the FS failed to provide a reasonable justification for limiting the maximum size of the air tanker retardant tank.

Above:  Air Tanker 944, a 747-400, drops near structures on the Palmer Fire south of Yucaipa, California at 4:25 p.m. PDT September 2, 2017. Photo by Leroy Leggitt, used with permission.

(This article first appeared on Fire Aviation)

The Government Accountability Office has upheld a protest by Global SuperTanker (GST) who contended the Forest Service’s (FS) contract restriction on the maximum size of a retardant tank was unduly restrictive of competition.

The FS issued a solicitation for Call When Needed air tanker services May 16, 2017. For the first time in their air tanker contracting history, according to the GAO, the FS restricted the maximum size of retardant tanks, specifying the capacity must be between 3,000 and 5,000 gallons. This eliminated Very Large Air Tankers (VLAT) from being able to compete, since the DC-10 holds 11,600 gallons and the GST 747 carries up to 19,200.

10 Tanker Air Carrier, which operates three DC-10’s,  attempted to support GST’s protest, but the GAO denied their request to submit an amicus curiae or friend of the court pleading, concluding that the company did not meet the definition of either a protester or an intervenor under the GAO’s Bid Protest Regulations.

The GAO decided that the FS…

…failed to provide reasonable justifications for the challenged specification, such that we are unable to conclude that the challenged specification is reasonably necessary for the agency to meet its needs.

We recommend that the agency make a documented determination of its needs. Once the agency identifies its needs, the agency should revise its solicitation to include specifications that are reasonably necessary to meet those needs. We also recommend that the protester be reimbursed the costs of filing and pursuing the protest, including reasonable attorneys’ fees.

We asked Jennifer Jones, a spokesperson for the FS, for their reaction to the GAO decision, if GST would be reimbursed for their attorney fees, if GST would be considered for a contract, and if there was any bias in the FS against any VLATs. Here is the response:

In accordance with regulations, the U.S. Forest Service is complying with the U.S. Government Accountability Office (GAO) decision for the Call When Needed (CWN) protest. We are reviewing our documentation. After the review is completed, the agency will determine the most appropriate ways to continue to procure Large and Very Large Next Generation Airtankers.

Jim Wheeler, the President and CEO of GST, said:

We are pleased that the GAO sustained our case. We really look forward to working with the Forest Service in the future and hopefully these issues around the [Requests for Proposals] will work themselves out to everybody’s satisfaction.

In 2016 and 2017 the 747 deployed to fires in Israel and Chile and the company currently has a CWN contract with the California Department of Forestry and Fire Suppression. The aircraft was used for several weeks in California in the last part of the summer supporting CAL FIRE, but the FS has not allowed the company to submit a bid to acquire a contract.

In the 22-page decision, the GAO addressed numerous issues introduced by the FS that attempted to justify the agency’s new policy of restricting the maximum size of a retardant tank in a contract solicitation. In each case the GAO argued that the FS was wrong, unreasonable, illogical, or, it did not apply to the issue.

Supertanker1 - 30 June 2010
File photo of the 747 Supertanker dropping on June 30, 2010. At that time the aircraft was operated by Evergreen Aviation.

The FS claimed that the solicitation was intended to procure services to support initial attack operations for which VLATs are not suitable. The GAO responded that the solicitation sought to procure aerial firefighting services to support both initial and extended attack operations. And, since it was a CWN contract, the FS could choose whether or not to use the VLAT on initial or extended attack.

The GAO wrote…

…there is also no support for the agency’s contention that VLATs are not suited for performing initial attack operations.

The GAO noted that 10 Tanker Air Carrier’s DC-10s  had completed a total of 700 missions in 2017 at the time of the decision and routinely performs initial attack operations.

They also found that…

Indeed, the record is completely silent regarding who, if anyone, at the agency made the decision to include the [maximum tank size] restriction, when the decision was made, and why the decision was made. Notably, none of the pre-solicitation documents contain any reference to a 5,000-gallon maximum restriction.

The FS cited air tanker studies from 1995, 1996, and 2005 as a basis for its restriction, but it did not identify any language in the studies to support the restriction.

From the GAO decision:

The cited pages do not lend support to the agency’s position. As an example, the page in the 2005 study merely indicates that the agency prefers larger aircraft over smaller aircraft, not that VLATs are somehow less desirable for initial attack operations.

The [2012] study recommends that the wildland firefighting aircraft fleet be composed of a mix of aircraft, including “Very Large Airtankers (>8000 gallons).” In discussing tank sizes, the study recommends a minimum capacity, not a maximum capacity, and reflects a preference for larger retardant tank capacities.

The Forest Service has not identified any study or analysis, upon which it relied to develop the RFP requirements, that has considered the question presented here: whether VLATs are unsuited for initial attack operations. In sum, the studies relied upon by the agency do not provide a reasonable basis to restrict competition.

Although the agency has reached conclusions regarding the technical limitations of VLATs, and is excluding VLATs from competition based upon such conclusions, the record does not demonstrate that the offered studies support the agency’s conclusions. For this reason, we are unable to find that the agency’s asserted justification for the exclusion of VLATs is reasonable.

The FS pointed out that on two occasions a VLAT struck objects on the ground while taxiing. The GAO said both incidents occurred while FS ground personnel were directing the aircraft. Reviews determined that one was 100 percent the fault of the ground guides and the other was 75 percent the fault of the ground guides.

The FS also listed several other reasons that they contend are significant problems related to the use of VLATs, including, the number of personnel needed on the ground, the amount of fuel and retardant needed, the number of suitable bases, and the need for lead planes.

In their written decision the GAO addressed these and other issues brought up by the FS, and similar to the examples above, shot them all down, saying the FS was simply wrong or the issue was not applicable to the protest. The GAO noted that economies of scale, with the VLATs carrying four to seven times more retardant than a conventional large air tanker, can mitigate some of these issues.

We asked Bean Barrett, a former Naval aviator and frequent contributor to this website, for his take on this issue:

It seems to me that their main contracting focus should be the gallons of retardant required to be delivered per hour or per day and the total cost per gallon delivered and the ability to meet various delivery rates/ coverage levels.

Platform type shouldn’t have any bearing on the issue at all unless there is some performance limitation that impacts its ability to meet delivery requirements.

If they ever get around to defining what constitutes acceptable IA in terms of how much retardant, how far away from base, and how fast, then there may be some platform considerations.

Bean recommends a book by Stephen Budiansky titled Blackett’s War: The Men Who defeated Nazi U-Boats and Brought Science to the Art of Warfare. It tells the story of how efforts led by Winston Churchill before and during World War II to utilize science and careful analysis resulted in innovations that made the British much more successful in warfare. Bean said, “The parallels you can draw with the USFS and fire aviation’s problems are amazing. It’s a very good interesting book and an easy read.”

One reviewer of the book on Amazon wrote that the Churchill-led efforts “…showed how careful quantitative analysis could provide far better guidance for decision makers than tradition, prejudice, and gut feeling.”

Our opinion

It appears from the GAO report that their decision to sustain the protest was not even close to going the other way. The FS seemed to be grasping at straws trying a shotgun approach, throwing out everything they could think of off the top of their head, with little serious thought, in their ill-considered attempt to prevent GST from being allowed to submit a bid on the contract. They came off looking like an inept, bumbling, incompetent, leaderless organization.

This should be an embarrassment for Jeffery Power, the new Assistant Director of Aviation for the FS, and Shawna Legarza, the National Fire Director for the FS.

Fire aviation is very expensive and based on the fatality records, is very dangerous. The Forest Service should consider reorganizing their aviation assets, removing the aviation autonomy from the individual regions and using a more centralized approach led by a Chief Pilot with actual pilot credentials and experience. It is our understanding that only one of the Regional Aviation Officers, who have far too much responsibility and power, is actually a pilot.

For anyone who closely follows FS aviation contracting it is obvious that for the last five years it has been a quagmire, with bad strategic decisions being implemented poorly, resulting in numerous protests. (It must be contagious, because the condition spread to the BLM this year.) It took 555 days for the FS to award the first “Next Generation” air tanker contract in 2012. Perhaps a Chief Pilot and an improved contracting section would better serve their customers, including aviators and our citizens.

In the interests of disclosure, Global SuperTanker has an ad on this website.

GAO criticizes agencies’ reviews of wildland fires

gao_gov_iconAfter analyzing the track records of the U.S. Forest Service and the Department of Interior for reviewing large fires, the Government Accountability Office issued a report that criticizes the five agencies:

[T]he agencies have not systematically followed agency policy regarding such fire reviews and, in the reviews they have conducted, they have not used specific criteria in selecting fires and conducting the reviews.

The full report is available here, but below are the GAO’s recommendations for executive action:

To better ensure that the agencies have sufficient information to understand the effectiveness of their approach to wildland fires, and to better position them to develop appropriate and effective strategies for wildland fire management, we recommend that the Secretaries of Agriculture and the Interior direct the Chief of the Forest Service and the Director of the Office of Wildland Fire to take the following two actions:

  1. Develop specific criteria for selecting wildland fires for review and for conducting the reviews as part of their efforts to improve their approach to reviewing fires, and
  2. Once such criteria are established, revise agency policies to align with the specific criteria developed by the agencies.

Thanks and a tip of the hat go out to Matt.

GAO sustains protest of non-competitive air tanker contract

The Government Accountability Office announced today that they sustained the protest filed by three companies over the sole source air tanker contract that the U.S. Forest Service awarded to Neptune Aviation December 12, 2013. The non-competitive contract, worth about $141 million, specified that Neptune would supply two or more next-generation air tankers, BAe-146s, for the next four to nine years beginning in 2014.

More details are at Fire Aviation.

Throwback Thursday

Let’s take a look six years back to see what we were writing about March 23-29, 2008.

Highlights of the 2008 Annual Wildland Fire Refresher Training.

Wildland Firefighter RefresherTraining 2008
–The After Action Review was released for the Santiago Fire, which was in Orange County, California.

–The U.S. Forest Service Fire Prevention Technician convicted of starting the 137,000-acre Hayman fire in Colorado was re-sentenced to 15 years probation and 1,500 hours of community service.

–A spokesman for North Carolina Division of Forest Resources in Raleigh, said rangers from the division have been allowing a fire to burn on an 18-acre uninhabited island because it doesn’t pose a threat to people or properties.

–A B-1 bomber while landing at Ellsworth Air Force Base had an in-flight emergency and may have dropped burning debris near the base that started multiple wildfires.

–There was an update on the trial of the Crew Boss and Type 3 Incident Commander on the Thirtymile Fire near Winthrop, Washington in 2001. Four members of his crew were overrun by fire and died.

GAO studies moving US Forest Service to Dept. of the Interior.

Poway, Calif., Firefighters Were Ordered To Not Fight Fires.

Behind the scenes — the protests of an air tanker contract

Neptune's Tanker 41 at Missoula
Neptune’s Tanker 41. a BAe-146, at Missoula, August 11, 2013. Photo by Bill Gabbert.

Today, March 11, the Government Accountability Office will hold a hearing at their office in Washington, DC to consider the protests filed by three air tanker companies over the propriety of the U.S. Forest Service’s non-competitive contract award to Neptune Aviation for next-generation large airtankers. After reviewing dozens of documents that revealed what was going on behind the scenes, Fire Aviation has the story of how the sole source contract developed, and the arguments from the other vendors about why that contract should be terminated.