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March 14, 2013 

VJA fiRST CLASS MAYLAND' EMAIL 

Christopher R. qonovan 

Boston Executive Helicopters UC 

125 Access Road 

Norwood, MA 020()2 

Re: DC-J Apron- Requqtfor Proposab 

Dear Mr. Donovan: 

N(DRWOQDAU~.PORTCOMMISSION 

Th9m~ ). WYMe; Ch(ltrmarr M!U'k i~. Ryan;. Vic• Chairman 

Kevin J. ShauiJmessy, Clerk 

Leslle w. LeBlanc 

Martin E. Odstrcbel 

This letter is in respo~ ~o your email dated S.unday, February 24, 2013,. in connection 

with the Request for Propos~ that ~ Town of Norwood C'To\VP"}issued for the so-called DC3 Apron at the Norwood Menw~ Airport (''Aiu>ort"). In your email, you expressed concern 

about the RFP and.the aw~Ud of: a: leu~ fQr thc,DC-3 Api:On. For the reasons set forth below, the 

Norwood Airport Commission(uNAC'') declines the challenge to the RFP by Bo$ton Executive 

Helicopters LLC ("BEH"). 

~ BEH's asserted congemswere yntimrly. 

Massachusetts law necessi~tcs .that p.o.tWi~ re~po:nd~ to ~ rQqucst;forpr,qpo~a be 

placed on "eq~ footing~'' ~ {~t)£lf!}C'92$~9~Iq~ :S2· y. ~· ~·~hy~ett§ Port &Jth9ri14'. 51 

Mass. App. Ct. 811,816 (20Q l:),, :; ~o. ~Ollll!.:.~q~Q{~~~..footina"l$ ~hieved "[~)o 

long as bidders have th~ OP.PO~~ to. ,pjd, in th : ~~ way, on $~ $~ information and to bear 

the same risk of rejection.~' ~~ 0(4~~'* ln~~trief s<~O.st9n ;water & ~ewer 

Commjssjon, 18 MMs. App, Qt;'" ~~1, ~26 Cl9S4){Pgtticcaconftti9D ~0. V. CQmroonwealth, 

37 Mass. App. Ct. 392, 397 (l9~4).: ·. . ··. · i'" 

12~ Access Road, Norwood, MA 02062 

PH:(781')2SS~S616 FAX:(781)2SS·S617 

•• " ... , . . . .... .. & ... ,. • ............... · - . .. - .............. ... ~· · • • • ·-& ... ~ ... ........ . . "" " •...•.. '··· .' .......• ~ .... ' .•... ·~ .... ...... '·· · .. ····~-". 
As you are aware, the RFP provided that sealed proposals would be received up to 11 :00 

am. on February 8, 2013 , for the lease of the unimproved DC-3 Apron at the Airport, for a use to 

be restricted to aircraft parking and aircraft ground-handling only. Notice of the RFP was 

published in the Norwood Record on December 27,2012 and January 3, 2013, and published in 

the Central Register on January 2, 20 13. You obtained a copy of the RFP on January 2, 2013 . 

As with all other potential proposers, BEH had a full and fair opportunity to timely 

submit questions in response to the RFP. However, only one (1) potential proposer submitted 

questions to the Town in response to the RFP. This potential proposer was not BEH. The Town 

issued Addendum #1, dated January 28,2013, which responded to the three (3) questions that 

were raised by this potential proposer. You received a copy of Addendum # 1 via email dated 

January 29,2013 . 

The questions and responses in Addendum #1 were incorporated into the bid 

specifications by reference. Addendum #1 was issued eleven (11) days prior to the deadline for 

submitted sealed proposals. The issuance of Addendum # 1 was provided to all potential 

proposers with sufficient notice for them to submit a proposal based upon the additional 

information contained therein. 

On February 6, 2013, you submitted twelve ( 12) separate, detailed questions in 

connection with the RFP to Patricia Bilotta of the Town's Purchasing Department (which issued 

and published the RFP). Your questions were raised less than forty-hour ( 48) hours prior to the 

February 8, 2013 deadline for responding to the RFP. There is no justification for you to have 

waited over a month since you obtained the RFP, or over a week since Addendum #1 was issued, 

before submitting additional questions to the RFP. 

Your twelve (12) questions submitted on February 6, 2013 could have impacted the 

responses received by other potential proposers, and thereby prevented responders from being in 

a position to respond to the RFP on the same footing and with the same information as BEH (had 

BEH responded to the RFP). Thus, the twelve (12) questions are untimely. Consistent with the 

recognized principles of fairness and equal footing implicit in Massachusetts procurement law, 

BEH was not entitled to receive a response to its untimely questions . 

.ll BEH djd not submit a proposal. 

Your February 24, 2013 email included the twelve (12) detailed questions to Ms. Bilotta 

noted above and raised additional asserted issues with the RFP. However, this February 24, 

2013 email is similarly untimely. Again, there is no reason why these issues could not have been 

raised earlier, particularly where you had obtained a copy of the RFP on January 2, 2013, more 

than six (6) weeks earlier. 
While the RFP had a February 8, 2013 response deadline, your February 24, 2013 email 

was received sixteen ( 16) dijys afterward. By this point, two (2) sealed proposals had already 

been submitted to and opened by the Town, in response to the specifications of the RFP. Your 

February 24, 2013 email suggested that the DC-3 Apron should be used for other purposes. 

Because these sealed proposals were submitted on the basis of using the DC-3 Apron for aircraft 

parking and aircraft ground-handling only, your February 24,2013 email contravenes the 

aforementioned concepts of fairness and equal footing. 

BEH did not submit a proposal for the RFP. It is fundamentally unfair to the potential 

and actual proposers for BEH to be asserting its issues in the DC-3 Apron for uses other than 

those stated in the RFP, particularly where BEH itself did not submit a proposal or timely raise 

questions or concerns with the RFP. Therefore, BEH is not in a position to raise these asserted 

issues after the RFP deadline. 

Q. BEH' s assertion of a violation of the iraDt assurances is devoid of factual or legal 

mmt 

Your February 24, 2013 email is replete with incorrect and/or erroneous information. 

The RFP is consistent with applicable Federal and Massachusetts law and regulations, and the 

Federal Aviation Administration ("FAA") grant assurances. Accordingly, the Town and the 

NAC decline your challenge to the RFP and intend to proceed with executing a lease with Papa 

Whisky, LLC, the successful proposer. 

J. Use of RFP for DC-3 Apron 

As a starting point, you noted that the existing lease for Lots A, 8 and C "was not put out 

to the public for consideration or bid." However, there is no requirement that airport sponsors 

issue a request for proposals or invitation for bids for the lease of airport property. 

Massachusetts General Laws Chapter 308, the Uniform Procurement Act, does not apply to "any 

contracts, agreements or leases entered into by a municipal airport commission established under 

the provisions of section fifty-one E of chapter nfuety; provided, however, that such contracts, 

agreements or leases apply to aviation uses or the sale of aviation fuel!' M.G.L. c. 308, § 1 (29). 

While not required, the Town nevertheless issued the R.FP for the DC-3 Apron in order to 

encourage competition and to obtain proposals at the highest price and most advantageous to the 

Town for the use of the DC-3 Apron. ~ Henrihetta and Lindsay Tulloch v. City of Harlingen, 

Thw., Docket No. 16-05-07 (Director's Determination, Aug. 21, 2006). The RFP is consistent 

with the limitations and impediments on the use of the DC-3 Apron as discussed below. The 

Town and the NAC have attempted to include, rather than exclude, other reasonably qualified 
enterprises through the RFP, consistent with the future development and planning of the Airport 

and concomitant needs. ~ i.Q. 

FAA Grant Assurance 22(i) allows an airport sponsor to prohibit or restrict aeronautical 

use in the interests of safety and efficiency. See also Aerodynamics of Readings. Inc. v. Readjpg 

Regional Airport Authority, Docket No. 16-00-03 (Director's Determination, Dec. 22, 2000); 

FAA Order 5190.6B ~~ 8.8.a, 14.1, 14.3. Although you seemingly assert that the DC-3 Apron 

should be considered for use by a fixed-base operator ("FBO"), the DC-3 Apron is 

approximately 15,295 ± square feet in area. This relatively limited size of the DC-3 Apron 

restricts its utility as a site for a full-scale FBO given paramount safety and efficiency concerns, 

along with the overarching concerns for the future development of the Airport property. 

2. Future Development of Airport and Need for Aircraft Tie-Down Spaces 

An airport operator has the right to plan and develop an airport. Monaco Coach Corp. v. 

Eugene Airport and Cjty of Eugene, Docket No. 16-03-17 (Director's Determination, July 27, 

2004 ). "The segregation of airport users and support facilities by function is a reasonable 

relevant means of developing a consistent plan for the growth and development of the airport." 

IsL Local planning is an identified by the FAA as a primary way of deciding the needs at an 

airport, and may be administered through leases and an airport's rules and regulations. ~ kL 

An airport sponsor is not obligated to consider a proposal that does not meet the development 

plan for an airport. Id. 

An airport sponsor, such as the Town, "may exercise its proprietary rights and powers to 

develop and administer the [a]irport's land in a manner consistent with the public's interest." 

Ricks v. Greenwood-Leflore Airport/Airnort Board. Cjty of Greenwood. Leflore County. 

Missjssjppi. Docket No. 16-09-04 (Director's Determination, Jan. 24, 2011). "It is within [an 

airport sponsor's) rights and powers and its responsibility for.the planning and development of 

the [a]irport to determine how land and public facilities should best be used to support the 

planning and development of the [a]irport." Henribetta and Lindsay Tulloch v. Cjty of 

Harlingen. Texas, Docket No. 16-05-07 (Director's Determination, Aug. 21, 2006). 

On the other hand, an airport sponsor is not required to "guarantee any particular 

individual aeronautical user access to the airport on whatever terms that user may desire." &rQ 

Ways. Inc. v. Delaware River & Bay Authority, Docket No. 16-09-12 (Director's Determination, 

Aug. 30, 201 0). Nor must an airport sponsor "develop any and all parcels of land in a manner 

consistent with the wishes of any one party." Santa Monica Airnort Association. Krueger 

Ayjation. Inc. and Santa Monica Air Center v. Cjty of Santa Monjca, CA, Docket No. 16-99-21 

(Final Agency Decision Feb. 4, 2003); JimsajrAvjation Services. Inc. v. San Diego County 

Regional Airoort Authority, Docket No. 16-06-08 (Director's Determination, Apr. 12, 2007). 
... 

• 

Restricting the DC-3 Apron is consistent with an efficient allocation of Airport property 

and the future development of the Airport. ~ RQbert l)jhlstrom y. Port of Orcas. Washini!on 

~Docket No. 16.02-07 (Director's Determination, Sept. 1, 2004). The NAC has recoiiUzed 

the public demand for additional hangars on the Airport property. As a result, additional hangars 

are being constructed on the so-called West Apron, resulting in the loss of existing West Apron 

aircraft tie-down spaces. This anticipated loss of West Apron aircraft tie-down spaces is 

exacerbated by the loss of aircraft tie-down spaces from a few years ago, when the North/South 

Taxi-lane was reconstructed and the FAA enforced a design standard that disallows aircraft to be 

tied down in close proximity to a taxi-lane. 

The net loss of aircraft tie-down spaces, along with the anticipated loss of additional 

aircraft tie-down spaces on the West Apron, necessitated the NAC's decision to retain some 

capacity for aircraft tie-downs. This is reflected through the use restriction in the RFP (and 

corresponding lease) for the DC-3 Apron to be limited to aircraft tie-downs and. ground-handling 

only. 

The NAC has treated users making the same or similar use of the Airport in a uniform 

manner. The West Apron is an appropriate comparator to the DC~3 Apron, in terms of aircraft 

tie-down spaces, and, as with the DC-3 Apron, subleasing is prohibited on the West Apron. The 

lease between the NAC and Boston Air Charter, LLC ("BAC"), the former tenant for the DC-3 

Apron, also prohibited subleasing on the DC-3 Apron. Conversely, Lots A, Band Care not 

similarly situated to the DC-3 Apron, because these lots are not part of the NAC's plan to retain 

aircraft tie-down capacity. 

You also referred to the improvement of the DC-3 Apron with Airport Improvement 

Program funds and the applicability of the FAA grant assW'allces, as well as the prior uses on the 

DC-3 Apron. Yet, the January 3, 2006 DC-3 Apron as-built drawiniS submitted to the NAC, 

FAA and Massachusetts Department of Transportation expressly desiiJUlte the DC-3 Apron .as 

being used for aircraft parking apron only. ::: 

The DC-3 Apron is for parking and grourtd-handling only the successful proposer's 

owned aircraft. The prior l~e between NAC and BAC had a similar restriction. This same 

restriction lw also existed for the Town-controlled West Apron for several years. 

Aircraft parking aprons exist at various locations on the Airport, including those leased 

by FlightLevel Norwood, LLC ("FUghtLevel"), Swift Aviation, Inc. (whose sublease for socalled Lot F is beini assigned to and assumed by BEH), and Boch Aviation. There is no use ., restriction on ramp handling. Neither the Town nor the NAC has taken any action to prohibit 
private competition or to favor a single entity at the Airport-the actions taken in issuing the 

RFP were instead to encourage competition. 

A single provider of an aeronautical activity does not violate the exclusive rights 

prohibition. FAA Order S190.6B V'J 8.6, 8.9.b. As a fully resour(fed FBO, one ofFlightLevel's 

service offerings is to ground-handle non-owned aircraft. If a properly resourced BEH were to 

apply for FBO status, and obtain a commercial permit from the NAC, then BEH could provide 

ground-handling services and compete with FlightLevel. BEH may be in a position to do so on 

Lot F-provided it meets the applicable requirements-because the NAC has consented to the 

Assignment, Assumption and Amendment ("Assigrunent") for Lot F. 

3. Self-Fueling 

The RFP does not prohibit the prospective lessee from self-fueling on the DC-3 Apron. 

Addendum #1 provides, in Answer #2b: "As for fueling limitations: The successful proposer's 

aircraft can be fueled on the DC-3 apron by a qualified fuel provider, authorized to perfonn such 

services, per applicable local, state and federal laws, regulations and other requirements.'' 

Addendum #1 clearly allows fuel transfer and self-fueling on the DC-3 Apron. This is consistent 

with FAA Order S190.6B, which provides that "[a]n airport sponsor is under no obligation to 

permit aircraft owners or operators to introduce fueling equipment or practices on the airport that 

would be unsafe or detrimental to the public welfare or that would affect the efficient use of 

airport facilities by the public.'' FAA Order 5190.6B, 8.8.b.(3). 

In fact, BAC was previously allowed to transfer fuel on the DC-3 Apron dw'ing its former 

tenancy. Contrary to your suggestion, the fuel transfer did not occur via a permanent structure or 

storage facility. BAC never presented the NAC with a plan to construct a fuel storage facility on 

the DC-3 Apron without a leasehold encroachment, and the Town and the NAC could not 

approve SAC's plan. BAC instead used a mobile fueler for self-fueling. This mobile fueler was 

improperly parked on the DC-3 Apron and was cited by the Norwood Fire Department for safety 

violations and for misrepresentations on the Volatile Inflammable Fluid C'VIF') license 

application. By means of comparison, the lease for Lots A, B and C also prohibits fuel storage. 

Your reference to the Corrective Action Plan in FAA Docket No. 16-07-03 (Boston Air 

Charter v. Norwood Airport Cqpvnissjon) is similarly misplaced. Consistent with the Corrective 

Action Plan, the NAC purchased a utilities easement from Boston Metropolitan Airport, Inc., 

which allows a potential aeronautical provider to either access the public transfonner on the socalled I, I 00 foot strip and/or to access the Town's off-airport electrical service along Access 

Road, at the west boundary to the Airport. The Corrective Action Plan does not require the 

Town to "obtain an easement for power for potential fuel storage and dispensing operations 

based on this ramp., 
Whether and to what extent BEH could have constructed and operated a fuel storage and 

dispensing facility on the DC-3 Apron for its own aircraft is entirely W1supported speculation. 

Because BEH never submitted a response to the RFP for the DC-3 Apron, this issue could not be 

fully addressed by the NAC. 

4. Lot F 

Most importantly, you have entirely overlooked the Town's recent efforts to assist BEH 

in establishing a larger presence at the Airport. These efforts reflect that adequate facilities are 

otherwise available to allow BEH to compete at the Airport, vis-a-vis Lot F. m Robert 

Kihlstrom v. Port of Orcas. Washinilon State, Docket No. 16-02-07 (Director's Determination, 

Sept. 1, 2004); ALCA. the Cylinder Shop!Wavman Aviation. Suncoast Aviation. and National 

Aviation v. Miami-Dade County. Florida, Docket No. 16-08-05 (Director's Determination, Aug. 

31,2010). 

At its February 13,2013 meeting, the NAC voted to approve the Assignment for Lot F, 

for a potential maximum thirty-one (31) lease term (I.e., through May 31, 2044). Through the 

Assignment, BEH will be in a position to further compete with FlightLevel, which defeats any 

suggestion of an exclusive right or W1just discrimination. 

The Assigrunent explicitly amends the existing lease for Lot F to provide for fuel storage. 

Section 8 of the Assigrunent expressly permits BEH, as assignee, to store, use and sell fuel, and 

uses incidental and ancillary thereto, upon the terms and conditions set forth therein. Further, 

Section 8 allows BEH to install a fuel storage facility on Lot F and to self-fuel and sell fuel to 

third parties. Section 8 also places BEH in a similar position with respect to a fuel flowage fee 

as FlightLevel, which operates a fuel farm on so-called Lot H. 

Aside from the Assigrunent, the NAC has supported BEH's recent application for a VIF 

license. This VIF license was approved by the January 22, 2013 Norwood Board of Selectmen's 

meeting. BEH's own reports and filings to the NAC have, for many months, reflected BEH's 

intention to construct a fuel storage/dispensing facility on Lot F, not on the DC-3 Apron. Lot F 

constitutes a suitable alternative to the DC-3 Apron and represents a realistic opportwtity for 

BEH because the NAC approved the Assignment. ~Monaco Coach Com. v. Eugene Airport 

and City of Eugene, Docket No. 16-03-17 (Director's Determination, July 27, 2004). 

Thank you for your attention to this matter. 
\ ... ,.,, 

cc: John J. Carroll, Norwo.od ~~n.~ ~~!r 

Russ Maguire, A.A.E., AC,~, AirpOrt ~ser 

Cathy Carney, NorwoQ4 ~~traCts A~strator 

Patricia Bilotta, Norwoocf}3uyer 

Brandon H. Moss, &quitO • 

7149Uvl 

Very/ yours, 

~t!:L<)~ Tho~J. · ,C~ 

Norwood N rt Commission