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The United States Bureau of Land Management (BLM) does not intend to re-evaluate its award of an exclusive use firefighting contract for a Restricted Category UH-60 Black Hawk helicopter, although he has now contradicted what he told potential bidders during the solicitation period.
The BLM published its tender for a “heavy” Type 1 helicopter last February, specifying minimum requirements for aircraft pointing to a Sikorsky UH-60 or S-70 Black Hawk. The call for tenders indicated that the aircraft would be used for missions involving the transport of “non-qualified crew members” and specified that the successful contractor was to operate in accordance with all parts of part 91 of the 14 Code. of Federal Regulations (CFR), “including those parts applicable to civil aircraft.
Some potential bidders – including Timberline Helicopters of Sandpoint, Idaho – have recognized a conflict in the BLM’s requirements. Currently, no model of the Black Hawk holds a standard certificate of airworthiness (normal or transport category) from the Federal Aviation Administration (FAA), which is a prerequisite for carrying passengers. Although there are now a number of UH-60 and S-70 Black Hawks operating in the United States under Restricted Category Type Certificates, 14 CFR Part 91 strictly limits who can be carried on an aircraft. of restricted category.
More specifically, 14 CFR 91.313 states that no person may be carried on board a restricted category civil aircraft unless that person is a flight crew member or a trainee flight crew member, ” performs an essential function as part of a special purpose operation for which the aircraft is certified ”, or“ is necessary to perform the work activity directly associated with that special purpose ”.
Although a Restricted Category aircraft may be certified for special firefighting purposes through “Aerial Fluid Distribution” (ADL), the FAA has made it clear that such certification does not qualify it. to transport firefighters in general. Instead, all non-crew members on board should be there to perform tasks essential to the operation of the ADL, such as plugging in the water bucket or directing water drops over the radio.
Civilian aircraft regulations do not apply to public aircraft – aircraft operated by or exclusively for a government entity – provided such aircraft carry only qualified crew members or non-crew members whose presence is associated with the exercise of a government function. This is a definition that could easily be applied to a BLM exclusive use helicopter carrying only agency firefighters.
However, the FAA now requires commercial operators who conduct public aircraft operations (PAA) under contract to obtain a written declaration of public aircraft status from their contracting government entity. When Timberline asked the BLM in March 2017 if it intended to issue a PAO declaration for the transport of “non-qualified crew members”, the agency said no.
“There is no intention to release a public aircraft statement, the agency maintains its position that an aircraft that meets the requirements of this solicitation will be able to perform most of the missions listed under the contract. B1, “said the BLM.
Timberline concluded that the BLM’s solicitation was flawed as the aircraft’s minimum requirements called for a Black Hawk, but no existing Black Hawks could legally carry passengers under Part 91. Timberline urged the BLM to cancel the solicitation; when the agency refused to do so, Timberline protested the solicitation to the Government Accountability Office.
The demonstration was ultimately unsuccessful. On June 29, 2017, the BLM awarded a contract worth up to $ 14 million to PJ Helicopters for a restricted category UH-60A. By the time the exclusive use contract period was concluded in September, the agency was using the Black Hawk to transport firefighters between helibases, sometimes in the absence of any ADL operations.
September 12, 2017 Vertical asked the BLM if a PAO declaration had been issued for these flights. A spokesperson replied: “A public aircraft operating declaration is not required, so none has been issued. The BLM argued that the clarification correspondence it received from the FAA before contract award authorized the transport of firefighters as essential or necessary personnel.
The FAA begged to defer, saying Vertical, “The FAA and DOI / BLM always strive to clarify which personnel are ‘essential and necessary’ for the operation of their restricted category aircraft. The FAA permits the carriage of persons in restricted category aircraft only if they are essential and necessary for the aerial work portion of the specified special purpose operation – in this case, aerial distribution of liquid for forest conservation and forest conservation. wildlife.
A PAO statement after all
The second season of the contract began in May. On May 24, the FAA issued a legal interpretation explicitly addressing the BLM’s use of the restricted category UH-60A to transport firefighters for ground firefighting. The FAA concluded: “No – the activity cannot be carried out in accordance with [14 CFR part 91 or part 119]. “
Since then, BLM’s parent agency, the Home Office (DOI), has issued a PAO statement for the contract. According to a BLM spokesperson, this statement “is specific to the UH-60 Black Hawk Exclusive Use Agreement and provides ministerial approval for the transportation of firefighters regardless of the use of the water pail.”
The decision to use the UH-60A for the transportation of firefighters goes against a long-standing DOI and US Forest Service (USFS) policy against the transportation of interagency personnel on restricted aircraft. In a recent policy clarification memo, the BLM defended its deviation from this policy by asserting that “contract language prevails” when there is a conflict between a contract and the Interagency Helicopter Operations Guide, and “The transport of firefighters on the N803PJ is within the scope of the type 1 contract.
The PAO statement appears to resolve the most pressing legal issues associated with the operation of the Black Hawk. However, the contract initially relied on FAA safety oversight – and it is not clear whether the BLM, by hastily issuing a PAO statement, ensured it had the policies and resources. necessary to assume this supervisory responsibility.
The PAO statement also doesn’t do much for operators like Timberline who refused to bid on what they rightly saw as a legally questionable, albeit lucrative, contract.
When Vertical Asked the BLM if it intends to cancel and relaunch the contract in light of its decision to issue a PAO statement after all, the agency has indicated it is not doing so.
“Based on the information received from the FAA Chief Counsel’s Office, we will continue to operate the Type 1 helicopter under the terms and conditions of the contract and FAA regulations,” the spokesperson said. by BLM.
In a statement provided to Vertical, Travis Storro, COO of Timberline Helicopters, responded: “As the operator of the incredibly capable and efficient UH-60 Black Hawk – an aircraft with redundant safety systems, twin-engine reliability and Rapid Incident Response Capabilities – Timberline has always believed that it is the right aircraft for the helitack mission.
“However, FAA regulations and policies, as well as USFS and DOI policies, have prohibited the transport of passengers or cargo in restricted category helicopters. We believe these issues should have been addressed before awarding a contract that would force the successful bidder to violate FAA regulations and interagency policies to perform the contract. “