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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- 

### RequqtforProposab 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 

### ofNorwood 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{~~~..foo tina"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** **Cl9 S4){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

•• "
... , . . . .... ..&
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...**~** ... ........ . ."" " •...•.. ' ··· . '
. . .... . •**~**.... ' .•...**·~** .... . .....**'·· ·** ..**····~-".**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 ofthe unimproved DC-3 Apron at the Airport, for a use to be restricted to aircraft parking and aircraft ground-handling only. Notice ofthe 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 ofthe 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 ofAddendum # 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 ofAddendum # 1 was provided to all potential proposers with sufficient notice for them to submit a proposal based upon the additional i nformation contained therein
. On February 6, 2013, you submitted twelve (12) separate, detailed questions in connection with the RFP to Patricia Bilotta ofthe 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. Y

our twelve ( 12) questions submitted on February 6, 2013 could have impacted the r esponses 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 ofthe 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 ofthe 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 ofusing the DC-3 Apron for aircraft parking and aircraft ground-handling only, your February 24,2013 email contravenes the aforementioned concepts offairness 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 itselfdid 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 ofa violation ofthe iraDt assurances is devoid offactual 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 arequest for proposals or invitation for bids for the lease ofairport 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 ofsection fifty-one E ofchapter nfuety; provided, however, that such contracts, agreements or leases apply to aviation uses or the sale ofaviation 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 ofthe DC-3 Apron.

**~** Henrihetta and Lindsay Tulloch v. City ofHarlingen, Thw., Docket No. 16-05-07 (Director's Determination, Aug. 21, 2006)
. The RFP is consistent with the limitations and impediments on the use ofthe DC-3 Apron as discussed below
. The Town and the NAC have attempted to include, rather than exclude, other reasonably qualifiedenterprises through the RFP, consistent with the future development and planning ofthe 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 ofReadings. 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 ofthe 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 ofthe Airport property. 

### 2. Future Development of Airport andNeed 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 ofEugene, Docket No. 16-03-17 (Director' s Determination, July 27, 2004)
. "The segregation ofairport users and support facilities by function is a reasonable relevant means ofdeveloping a consistent plan for the growth and development ofthe airport
." 

### IsL Local planning is an identified by the FAA as a primary way ofdeciding 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 ofGreenwood. 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 ofthe [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 ofany one party." Santa Monica Airnort Association. Krueger Ayjation. Inc
. and Santa Monica Air Center v. Cjty ofSanta 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 ofAirport property and the future development ofthe Airport.

**~** 

### RQbert l)jhlstrom y. 

### Port ofOrcas. 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 ofexisting West Apron aircraft 

### tie-down spaces. This anticipated loss ofWest 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 ofaircraft tie-down spaces, along with the anticipated loss ofadditional 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 ofthe Airport in a uniform manner. The West Apron is an appropriate comparator to 

### the

**DC~3** 

### Apron, in terms ofaircraft 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 ofthe NAC's plan to retain aircraft 

### tie-down capacity. You also referred to the improvement ofthe DC-3 Apron with Airport Improvement Program funds 

### and the applicability ofthe 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 ofTransportation 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 

### Fis 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 prohibitprivate 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 ofan 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. Ifa 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 

### apermanent 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 ofcomparison, 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 

### autilities easement from Boston Metropolitan Airport, Inc., which allows 

### a potential aeronautical provider to either access the public transfonner on the 

### socalled 

### I, I00 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 ofOrcas. 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 ofan exclusive right or W1just discrimination
. The Assigrunent explicitly amends the existing lease for Lot F to provide for fuel storage . Section 8 ofthe 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 ofSelectmen'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 ofEugene, 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