ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                  )
                                              )
AAR Airlift Group, Inc.                       )      ASBCA No. 59708
                                              )
Under Contract No. HTC71 l-10-D-R026          )

APPEARANCE FOR THE APPELLANT:                        Malcolm L. Benge, Esq.
                                                      Zuckert, Scoutt & Rasenberger, L.L.P.
                                                      Washington, DC

APPEARANCES FOR THE GOVERNMENT:                      Jeffrey P. Hildebrant, Esq.
                                                      Air Force Deputy Chief Trial Attorney
                                                     Lt Col Damund E. Williams, USAF
                                                      Trial Attorney

               OPINION BY ADMINISTRATIVE JUDGE MCILMAIL

      Appellant seeks $258,506.11 for helicopter transportation services that it says it
provided in Afghanistan in November 2013.

                                 FINDINGS OF FACT

        In 2010, the parties contracted for appellant to provide approximately 50 helicopters
for the transport of supplies, mail, and passengers in Afghanistan (R4, tab 3 at 1, 166,
§ 1.1 ). The contract provides:

               Each aircraft is allowed 6 days per month for
               scheduled/unscheduled maintenance (which equates to an
               80% operational readiness rate). Each day the aircraft is
               Non Mission Capable (NMC) after the 6th day, payment
               will be prorated from the monthly fee. Proration will be
               calculated by dividing the monthly service rate by the
               number of days in the month and then multiplying this
               amount by the number of NMC days .... Any day an
               aircraft is not FMC [Fully Mission Capable] for carrier
               controlled reasons, no monthly service payment will be
               made for that day. An airframe is not to be considered
               available unless both the airframe is FMC and the aircrew
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                   is available as defined by the FAA [Federal Aviation
                   Administration] or comparable regulations.

    (Id. at 186, § 1.4.2 (emphasis added)) The unit price for contract line item numbers
    (CLINs) 3002 and 3003 for November 2013 was $456,187 each, or $15,206.23 per
    day ($456,187/30 days= $15,206.23/day) (R4, tab 4 at 648-50).

            On June 30, 2014, appellant presented to the contracting officer a certified claim
    for $440,980.77, saying that the government had failed to pay for 29 days of service
    provided in November 2013 (3 days under CLIN 3002, and 26 days under CLIN 3003).
    The claim did not identify the specific days for which appellant was seeking payment.
    (R4, tab 22 at 1018-19) In a final decision on August 26, 2014, the contracting officer
    awarded $30,412.36 under CLIN 3002 for November 2 and 5, 2013 (2 days), and
    $152,062.30 under CLIN 3003 for November 1, 2, 9, 13, 14, 26, 27, 28, 29, and 30,
    2013 (10 days), a total of $182,474.66 for 12 days (R4, tab 2 at 10). The contracting
    officer based his determination upon a finding that, on those days, aircraft N391AL was
    available under CLIN 3002, and aircraft N3897N was available under CLIN 3003,
    respectively (id.).

            Before the Board, appellant says that its aircraft were FMC on November 1, 2,
    and 5, 2013, under CLIN 3002, and November 1, 2, 4-16, and 26-30, 2013, under
    CLIN 3003, a total of23 days (app. br. at 5-61113-14).* The difference between that
    and the dates that the contracting officer credited appellant for consists of November 1,
    2013, under CLIN 3002, and November 4-8, 10-12, and 15-16, 2013, under CLIN 3003,
    a total of 11 days. We read appellant's brief to mean that the government has paid
    $182,474.66 of the claim that appellant presented to the contracting officer, leaving
    $258,506.00 unpaid (app. br. at 3, 71122, 19).

            Appellant's contemporaneous situation reports for November 2013 indicate that
    on November 1, 2013, aircraft N364FH (a model "S-61") was an operational spare for
    N3911\L, which was on that date NMC (more specifically, what appellant calls
    "NMCM"); and that on November 4-8, 10-12, and 15-16, 2013, N364FH was an
    operational spare for N3897N, which on those dates was NMC (more specifically, what
    appellant calls "NMCS") (R4, tab 5 at 769, 773-77, 779-81, 784-85). However, those
    same reports indicate that, on each of those days, appellant had fewer S-61 pilots than it
    required. (The situation reports do not match any particular pilots with any particular
    aircraft.) (Id.) For example, the situation report for November 1, 2013, indicates that
    appellant required 14 S-61 pilots on that date (7 "PIC" (Pilots-in-Command) and
    7 "SIC" (Seconds-in-Command)), but had only 10 pilots available (id. at 769; app.
    br. at 12-13). In particular, appellant had only three SICs for the five S-61s listed on
    the situation report for November 1, 2013 (R4, tab 5 at 769). As another example (there


    *   Appellant erroneously references 2017 for some of those dates (app. br.at6114).
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are, of course, others), the report for November 4, 2013 shows that appellant had only
three SICs for the five S-61s listed (R4, tab 5 at 773).

                                        DECISION

         The question is whether appellant is entitled to payment for N364FH (an S-61
 aircraft) as a spare for (1) N391AL on November 1, 2013, and (2) N3897N on
November 4-8, 10-12, and 15-16, 2013, given that N391AL and N3897N were not FMC
 on those dates. The contract prnvides for payment for days an aircraft is FMC and the
 aircrew for the aircraft is available. Appellant cites its situation reports to establish that
those elements are met (app. hr. at 5-6 ,r,r 10-14), but, as the government points out
(gov't hr. at 19, 21-28), those reports show that appellant did not have the number of
S-61 pilots that it required on the days in question. The situation reports do not match
particular pilots with particular aircraft, and we will not do so ourselves. SKE Base
Servs. Gmbh, ASBCA No. 60101, 18-1 BCA ,r 37,159 at 180,903 ("We won't do
appellant's work for it."); Essential Construction Co., Inc., ASBCA No. 18706, 89-2
BCA ,r 21,632 at 108,833-34 (refusing "to become appellant's advocate"); McCotter
Motors, Inc., ASBCA No. 30498, 86-2 BCA ,r 18,784 (Feb. 4, 1986) ("We decline to do
appellant's work for it."); VIZ Manufacturing Co., ASBCA No. 17787, 79-1 BCA
,r 13,682 at 67,109 ("If appellant did not have enough time for proper briefing, that is no
one's fault but its own.").

        Appellant's own analysis of its aircrew availability situation is not persuasive.
Appellant does not address the S-61 pilot shortage that the situation reports evidence,
and, although it attaches charts to its opening and reply briefs, cites no evidence in
support of its analysis, including the charts (app. hr., attach. C; app. reply hr. at 18-20,
attach. B). We conclude that because of a shortage of S-61 pilots on November 1, 4-8,
10-12, and 15-16, 2013, appellant is not entitled to any additional compensation for
those days. Appellant focuses on a question that in view of this conclusion we need
not answer: whether "aircraft and pilots were required to be co-located in order for the
aircraft to be deemed FMC for payment purposes" (app. hr. at 15). Regardless of
whether the contract required such co-location, appellant does not explain why the
situation reports are not fatal to its claim to additional compensation, nor does it cite
any contemporaneous evidence to counter our conclusion that the situation reports
evidence pilot shortages for the days at issue.




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                                    CONCLUSION

       The appeal is denied.

       Dated: October 29, 2019



                                                   TIMOTHY P CILfaIA
                                                   Administrative Judge
                                                   Armed Services Board
                                                   of Contract Appeals

                                                   I concur



RICHARD SHACKLEFORD                                J. REID PROUTY
Administrative Judge                               Administrative Judge
Acting Chairman                                    Vice Chairman
Armed Services Board                               Armed Services Board
of Contract Appeals                                of Contract Appeals


        I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 59708, Appeal of AAR
Airlift Group, Inc., rendered in conformance with the Board's Charter.

       Dated:



                                                   PAULLA K. GATES-LEWIS
                                                   Recorder, Armed Services
                                                   Board of Contract Appeals




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