ASBCA 59708

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 1 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.