BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C.

Application of CSI AVIATION SERVICES, INC. for an emergency exemption pursuant to 49 U.S.C. § 40109 and 14 C.F.R. § 302.11 to continue to perform under General Services Administration Contract GS
- 33F
- 0025V, SIN 599
- 5, Air Charter Services

— Brokers ) ) ) ) ) ) ) ) ) ) ) Docket OST
- 2009
- 0311

COMMENTS OF THE AIR CHARTER ASSOCIATION OF NORTH AMERICA TO SUBMISSION OF THE GENERAL SERVICES ADMINISTRATION
Communications with respect to this docu ment should be sent to:

Scott Bickford, Chairman David McCown , President Jonathan Tasler, Vice President Air Charter Association of North America

c/o Air Planning, LLC 2 Main Street Salem, New Hampshire 03079 (603) 890

- 0044 sbickford@flyacana.org jt asler@flyacana.org dmccown@flyacana.org

Dated: March 5, 2010BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C.

Application of CSI AVIATION SERVICES, INC. for an emergency exemption pursuant to 49 U.S.C. § 40109 and 14 C.F.R. § 302.11 to continue to perform under General Services Administration Contract GS
- 33F
- 0025V, SIN 599
- 5, Air Charter Services

— Brokers ) ) ) ) ) ) ) ) ) ) ) Docket OST
- 2009
- 0311

COMMENTS OF THE AIR CHARTER ASSOCIATION OF NORTH AMERICA TO SUBMISSION OF THE GENERAL S ERVICES ADMINISTRATION In accordance with the Department’s March 3, 2010 Notice, the Air Charter Association of North America (ACANA) respectfully submits these comments in response to the March 1, 2010, letter from the General Services Administration (G SA) to the Department of Transportation (DOT). As an independent agency solely dedicated to procuring goods and services for the Federal Government (Government) , GSA is uniquely positioned to assess the value of air charter brokerage services to the Gove rnment. GSA’s specialized expertise assisting Federal purchasers of air charter services led to the issuance of a particular Special Item Number (SIN) for brokers, SIN 599

- 5, Travel Services Solutions; Air Charter Services

– Brokers, in the first place. As GSA notes, the agency “has an experienced cadre of air transportation professionals who are familiar with both the ‘air charter services

– owner - operated’ model,” on the one hand, “and ‘air charter services

— brokers’ business model[],” on the other hand. GSA Letter at 2.2 GSA also correctly observes that owner operated air charter services may not always be capable of meeting the Government’s time sensitive missions. Government charters are often arranged with little advance notice and often involve s mall aircraft because the underlying missions call for transportation of a limited number of passengers, often to airports that cannot be served by large jets offered under SIN 599

- 4, Air Charter Services

- Owner Operated

. DOT is intimately aware that the need for air charter brokers can be heightened by unforeseen events. As DOT stated when recently issuing and then extending a limited exemption to charter brokers listed on SIN 599

- 5 from the licensing requirement of 49 U.S.C. §
41101 in response to the F ebruary 2010 disaster in Haiti , brokers “continue to be needed on an immediate basis to expedite the earthquake relief efforts of the U.S. Government.” Order 2010

- 2

- 10 (Feb. 12, 2010), at 2. Although DOT’s exemption was issued under exigent circumstances , the issuance and renewal of these exemptions underscore the critical and unique role that air charter brokers play in helping the Government respond to emergencies. Importantly, however, t he Government’s need for bro ker services does not simply go
away once emergencies have subsided . Every day there is a continuing need for brokers to support critical Government missions, ranging from law enforcement operations (including international extraditions ) to medical flights and the transport of alien detaine es and prisoners. These missions are also not limited to flights within the United States, and may involve sensitive Government missions in virtually any part of the globe. For all of these flights, however, the
Government needs to know that brokers are a vailable on little or no advance notice to arrange the required flights. ACANA also supports GSA’s position that the Government, when procuring air transportation, knows full well the difference between obtaining air transportation directly from3 aircraft operators and utilizing the services provided by charter brokers. Indeed, and as ACANA remarked in its own reply comments previously filed in this docket, 1

Furthermore, ACANA strongly agrees with the GSA that “[a]cquisition by the Federal Government . . . is distinct in several ways from acquisitions in the private sector and does not present the consumer protection related concerns typically a t issue in the private sector.” GSA
Letter at 1. In this regard, ACANA firmly believes that the consumer protection concerns identified by the DOT in previous enforcement actions against air charter brokers are largely absent in this case. a Government purchaser selecting a vendor from SIN 599

- 5 will understand that it can only be broke r services that it is purchasing.

Moreover , apart from DOT’s own enforcement mechanisms , the Government has at its disposal considerable coercive power to prevent nonperformance and fraud by its broker contractors. As the GSA notes, this power includes: suspension or debarment from all Federal contracting opportunities pursuant to 48 C.F.R. Subpart 9.4; the prohibition against advance payments prior to performance under the 31 U.S.C. § 3324; and, most importantly, the ability to seek remedies in the form of criminal sanctions under 18 U.S.C. § 287 and treble civil damages under 31 U.S.C. § 3729

- 3733. As the GSA observes, “[t]aken together, these various civil and criminal statutes and implementing regulations protect the Federal Government in a manner not available to the private se ctor.” GSA Letter at 2. ACANA hopes that DOT will carefully consider GSA’s specialized experience in this matter, and heed GSA’s measured call to allow air charter brokers to continue performing under their GSA contracts, as well as contracts that brok ers may have with other Government agencies. In this regard, and as ACANA has previously proposed, the Department should forthwith: (1)

1 Reply of ACANA in Docket DOT

- OST

- 2009

- 0311 (Dec. 22, 2009), at 9.4 issue a blanket exemption allowing air charter brokers to continue to arrange air transportation on behalf of the Gover nment under SIN 599

- 5, 2

Finally, ACANA and its members would welcome the opportunity to mee t with DOT to discuss Government procurement of air charter brokerage services once DOT has disposed of the matter now pending in this docket, but before a formal rulemaking proceeding (if any) is instituted. or, alternatively: (2) institute an expedited rulemaking to define a role for brokers as indirect air carriers providing brokerage services to the Government under SIN 599

- 5. In either event, it is imperative that DOT act as soon a s possible before the April 15, 2010 cease and desist deadline it has imposed on each of the brokers listed on SIN 599

- 5, or extend that deadline pending a final resolution of the matter.

2 In this regard, the DOT has stated that “it i s our understanding that air charter brokers, under current procurement

rules, may not act as an agent of the U.S.

- Government for purposes of procuring air transportation for U.S. Government charterers . . .” Order 2010

- 2

- 10, at 2, fn. 3. As a consequenc e, the DOT believed it was necessary to issue exemptions to brokers for arranging air transportation in connection with Federal relief efforts in Haiti. Therefore, DOT already has a useful foundation upon which it can base future exemptions for the contin uation of broker services under SIN 599

- 5.5 Respectfully Submitted,
AIR CHARTER ASS OCIATION OF NORTH AMERICA

By_______________________________________ Scott Bickford, Chairman David McCown , President Jonathan Tasler , Vice President Dated: March 5, 2010CERTIFICATE OF SERVICE I hereby certify that on this , the 5th of March 2010 , a copy of the foregoing Comments of the Charter Association of North America was served by email on the parties named below:
agoerlich@ggh

- airlaw.com carl.smith@mcgovernandsmith.com dhernandez@vedderprice.com gcirillo@wileyrein.com jamestello@earthli nk.net john.fredericksen@suncountry.com markrobinson@rubloffusa.com matwood@sherblackwell.com pmccluskey@flyacana.org pmurphy@lopmurphy.com rbinns@glah.com rpriddy@naca.cc tspulak@kslaw.com vsmith@ggh

- airlaw.com thuy.cooper@dot.gov george.wellington@dot.gov jonathan.dols@dot.gov dayton.lehman@dot.gov samuel.podberesky@dot.gov mnichols@nba a.org virginia.grebasch@gsa.gov

____________________________ Scott Bickford