B.H. Aircraft Co. v. United States
| Decision Date | 10 March 2022 |
| Docket Number | 21-1629 C |
| Parties | B.H. AIRCRAFT COMPANY INC., Plaintiff, v. THE UNITED STATES, Defendant, and GENERAL ELECTRIC COMPANY, d/b/a GE EDISON WORKS, Defendant-Intervenor. |
| Court | U.S. Claims Court |
B.H. AIRCRAFT COMPANY INC., Plaintiff,
v.
THE UNITED STATES, Defendant,
and GENERAL ELECTRIC COMPANY, d/b/a GE EDISON WORKS, Defendant-Intervenor.
No. 21-1629 C
United States Court of Federal Claims
March 10, 2022
Reissued: March 29, 2022 [*]
Abraham Gdanski, argued the motions pro hac vice, Sam Z. Gdanski, counsel of record, Gdanski Law PC, of Teaneck, NJ, for Plaintiff.
Daniel B. Volk, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, Department of Justice, with whom were Douglas K. Mickle, Assistant Director, Martin F. Hockey, Jr., Acting Director, and Brian M. Boynton, Acting Assistant Attorney General, all of Washington, D.C., for Defendant, and Karen E. Anderson, Assistant Counsel, NAVSUP Weapon Systems Support, of Philadelphia, PA, of counsel.
Richard P. Rector, with whom was Thomas E. Daley, DLA Piper LLP, all of Washington, D.C., for Defendant-Intervenor.
OPINION AND ORDER
ZACHARY N. SOMERS Judge
On July 29, 2021, Plaintiff B.H. Aircraft Company Inc., ("B.H.") filed a pre-award bid protest in this Court challenging "the inclusion of spare part replacement services for a single part"-aircraft engine afterburner liners-within a larger sole source solicitation announced by the United States Department of the Navy ("Navy"). ECF No. 1 at ¶ 4 ("Compl."). Plaintiff, "a small business, specializing in providing complex fabrications for aerospace and ground power applications," id. ¶ 1, alleges that the solicitation improperly "bundles spare part replacement services within a planned procurement covering varying support services for multiple parts" relating to the F414 engine that is used to power the F/A-18 E and F Super Hornet and the EA-18G Growler model aircraft, id. ¶ 4; see also ECF No. 29 at 1 ("Gov.'s MTD & MJAR").
The solicitation covers 778 components, "some repairable, others consumable," used in the F414 engine. Gov.'s MTD & MJAR at 2. Defendant-Intervenor General Electric Company d/b/a GE Edison Works ("Defendant-Intervenor" or "GE") is the original equipment manufacturer ("OEM") for the F414 engine and, since 2005, has contracted with the Navy "as the only responsible source, to fulfill its requirements for F414 engine support." Id. For relief, Plaintiff requests the Court find "that the bundling was improper and order the unbundling of the procurement," or alternatively "to exclude repair/replacement services for [the relevant afterburner liner] which should have been excluded from the Protested Solicitation." Compl. at 23.
The government and Defendant-Intervenor move to dismiss Plaintiff's complaint for lack of standing or, in the alternative, for judgment on the administrative record. In addition, Defendant-Intervenor moves to dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted. For the following reasons, the Court dismisses Plaintiff's complaint because Plaintiff has failed to establish that it has standing to bring the instant protest and, in the alternative, for failure to state a claim upon which relief can be granted.
BACKGROUND AND PROCEDURAL HISTORY
A. The F414 Fleet Support Performance Based Logistics Requirement-History, Purpose, and Context
This protest challenges the Navy's procurement of a Fleet Support ("FS") Performance Based Logistics ("PBL") contract to support its fleet of F414 aircraft engines, specifically "the 778 General Electric F414 engine components," which "includes 35 7R Families of repairable [National Item Identification Numbers ("NIINs")] (72 in total) and 706 1R consumable NIINs." AR 41. The dispute concerns the inclusion of one aspect of the line item in the solicitation for the repair, overhaul, and replacement of one particular component out of the 778 in the anticipated contract: NIIN 014808247, or part number ("PN") 5103T24G04, which is an afterburner liner for the subject engines. AR 199.
Issued by the Naval Supply Systems Command, Weapon Systems Support ("NAVSUP WSS"), the F414 PBL contract is for a period of five years, with an expected period of performance starting May 1, 2022, and concluding April 30, 2027. AR 41. According to the Navy, "[t]he repair and replacement of F414 engine controls and accessories, and engine afterburner module components are elements of the Navy's Maintenance Strategy for the F414 engine," and "[a] continuous supply of Ready for Issue (RFI) F414 engines is required in support of flight operations for F/A-18 E, F and EA-18G model aircraft" used by the Navy. AR 62. The awardee of the contract "shall be required to repair or replace the 72 repairable components and supplying or manufacturing the parts needed for those repairs," and "shall also be responsible for supplying or manufacturing the 706 consumable components." AR 41 (emphasis added). Moreover, the awardee "shall also be required to partner with the Fleet Readiness Center Southeast (FRCSE), Jacksonville, FL for repair touch labor." Id.
The contract does not represent an entirely new PBL requirement. AR 55. Rather, it "is a follow-on effort that will replace NAVSUP WSS' current PBL support contract for F414 engine Fleet Maintainer support, the three-year F414 FS PBL contract, N00383-18-D-P601, which expires on 30 April 2022." AR 95. "Since fiscal year 2005, the Navy has contracted with [Defendant-Intervenor] . . . to fulfill its requirements for F414 engine support." Gov.'s MTD & MJAR at 2; see also ECF No. 33 at 13 ("Pl.'s Resp. & Reply") ("Prior to the Issuance [sic] of the first F414 PBL, solicitations for the afterburner liner of issue were issued as smaller, stand-alone requirements for spares suitable for award to an approved small business (Ref N0038303QM466 Dated Oct 2003).").
In fact, the instant procurement constitutes the sixth iteration (or, fifth renewal) of an FS PBL contract for the F414 engine.[1] The record indicates that for each consecutive iteration, Defendant-Intervenor was the sole source awardee. See generally AR Tabs 29, 32, 34-36; see also AR 1410 (Navy's 2003 F414 PBL contract Justification and Approval memorandum finding that "[o]nly [Defendant-Intervenor] will be solicited because the articles to be repaired/replaced are highly specialized parts designed by a non-Government entity and the technical data required for repair or replacement of repairable components by other than [Defendant-Intervenor] is not adequate to support full and open competition.").
On December 3, 2020, following a government-only "F414 Fleet Support PBL 5thRenewal Kick-Off" meeting in September 2020, see generally AR Tab 1, NAVSUP WSS issued a synopsis outlining the contours of the anticipated renewal contract. See generally AR Tab 2. Per the synopsis, "[p]rospective offerors must submit a source approval request to NAVSUP WSS to become an approved Navy source of supply." AR 41. It further states that the "requirement will be procured in accordance with [Federal Acquisition Regulation ("FAR")] 6.302-1, only one responsible source and no other supplies or services will satisfy agency requirements." Id.; see also AR 17 (renewal meeting notes providing that "Acquisition Strategy will remain a Sole source PBL to the OEM: GE Aviation.") (emphasis omitted). Responses to
the notice were due December 18, 2020, and, according to the contracting officer's "Small Business Coordination Record," the deadline passed with "no other source [having] expressed an interest in the subject requirement." AR 54. The same document goes on to state that "[t]he Government intends to contract on a sole source basis with General Electric (GE)," which "is the owner of the technical data required to perform the contract. No other public or private entity has the requisite technical data to meet the requirements of the contract." AR 54.
As part of this procurement, the Navy produced a "Determination and Findings for Authority to Consolidate Contract Requirements" ("D&F"), given that "[a]n additional 2 consumable and 1 repairable components will be added to this contract."[2] AR 116. Because the additional components are either not previously contracted for or are currently supported under a separate contract, the D&F concludes that "the proposed acquisition constitutes a consolidation as defined in FAR 2.101." Id. However, as the existing separate contract was already with Defendant-Intervenor, "[t]his proposed contract does not constitute bundling as no small businesses have performed contracts for any of the items covered by this acquisition." Id. (emphasis added).
The D&F also outlines the results of the Navy's market research, which "indicated that there are no other sources which expressed interest in repairing the required components, currently attempting to become a qualified manufacturing source, or capable of delivering the required performance covered by this acquisition." AR 117; see also id. ("[Defendant-Intervenor is] the sole designer and developer of the F414 engine and has been solely responsible for the engine requirements since development of the engine for the F/A-18E/F aircraft in 1997 . . . . Currently no other entity is capable of providing the level of support, operational availability, and reliability improvements desired in this contract.").
Per the Navy's acquisition plan for the instant procurement, "[t]he Navy's current budgeted inventory of F414 engines is [XXXXX] with projected increases to [XXXXX] engines by fiscal year 2025." AR 107. Moreover, "[a]ll parts required in support of depot level remanufacture, all replacement afterburner module piece parts, and all module reassembly and accessory attaching hardware support, as required, will be provided by the Contractor," and "[i]n order to be successful, the Contractor must fill all Navy requisitions for these requirements with delivery in two (2) to sixty (60) days depending upon requisition priority." Id.
Additionally
Full and open competition is not contemplated for this proposed...
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