Case: 22-1766 Document: 67 Page: 1 Filed: 01/02/2024
United States Court of Appeals
for the Federal Circuit
______________________
B.H. AIRCRAFT COMPANY INC.,
Plaintiff-Appellant
v.
UNITED STATES, GENERAL ELECTRIC
COMPANY, DBA GE EDISON WORKS,
Defendants-Appellees
______________________
2022-1766
______________________
Appeal from the United States Court of Federal Claims
in No. 1:21-cv-01629-ZNS, Judge Zachary N. Somers.
______________________
Decided: January 2, 2024
______________________
SAM GDANSKI, Gdanski Law PC, Teaneck, NJ, for
plaintiff-appellant. Also represented by ABRAHAM
GDANSKI.
DANIEL B. VOLK, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for defendant-appellee United States. Also repre-
sented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY,
DOUGLAS K. MICKLE.
RICHARD P. RECTOR, DLA Piper US LLP, for defendant-
Case: 22-1766 Document: 67 Page: 2 Filed: 01/02/2024
2 B.H. AIRCRAFT COMPANY INC. v. US
appellee General Electric Company. Also represented by
THOMAS EDWARD DALEY.
______________________
Before DYK, REYNA, and STARK, Circuit Judges.
PER CURIAM.
B.H. Aircraft Company, Inc. (“B.H. Aircraft”) filed a bid
protest action in the Court of Federal Claims to challenge
the inclusion of F414 afterburner liner replacement ser-
vices within a larger contract for the United States Depart-
ment of the Navy (“Navy”). The Court of Federal Claims
concluded that B.H. Aircraft lacked standing. Alterna-
tively, the Court of Federal Claims concluded that B.H.
Aircraft failed to state a claim upon which relief could be
granted because B.H. Aircraft had not established a viola-
tion of the bundling regulation.
Consistent with our recent opinion in CACI, Inc.-Fed.
v. United States, 67 F.4th 1145, 1151–52 (Fed. Cir. 2023),
we hold that the standing issue here (i.e., whether B.H.
Aircraft is a qualified bidder) is one of statutory standing,
which overlaps with one aspect of the merits. The other
merits issue is whether the contract violates the bundling
regulations. We review the Court of Federal Claims’ deci-
sion as to standing and failure to state a claim de novo. The
Court of Federal Claims reviews the decisions of the con-
tracting officer as to statutory standing and as to the appli-
cation of the bundling regulation under the standard of
“arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” PAI Corp. v. United States,
614 F.3d 1347, 1351 (Fed. Cir. 2010) (quoting Bannum, Inc.
v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005)); Im-
presa Construzioni Geom. Domenico Garufi v. United
States, 238 F.3d 1324, 1332 n.5 (Fed. Cir. 2001). We agree
with the Court of Federal Claims that under that standard
B.H. Aircraft failed to state a claim on which relief could be
granted. We affirm.
Case: 22-1766 Document: 67 Page: 3 Filed: 01/02/2024
B.H. AIRCRAFT COMPANY INC. v. US 3
BACKGROUND
For some years, the Navy had entered into sole-source
Performance Based Logistics (“PBL”) contracts with Gen-
eral Electric Company, dba GE Edison Works (“GE”) for
maintenance of its F414 plane engines. The prevailing con-
tract was set to expire, and on December 3, 2020, the Navy
issued a pre-solicitation notice “for the anticipated F414
Fleet Support Performance Based Logistics contract” with
an “expected period of performance” from May 1, 2022, to
April 30, 2027. J.A. 408. The notice said “[p]rospective of-
ferors must submit a source approval request to NAVSUP
WSS to become an approved Navy source of supply” and
“[t]hese items require Government Source Approval prior
to award.” Id. Responses were required by December 18,
2020.
The PBL solicitation eventually provided for repair of
some parts and replacement of others, as contemplated by
the pre-solicitation notice. In total, the solicitation was to
cover 778 engine components, 706 of which were consuma-
ble and thus were only replaced, and not subject to repair.
The other 72 engine components were repairable, including
the F414 afterburner liner at issue in this case. The solic-
itation provided that repairable items could be replaced
with a new unit if repair was not feasible.
In a letter dated January 25, 2021, B.H. Aircraft re-
quested that the replacement of the F414 afterburner liner
be removed from the PBL contract (apparently while leav-
ing the repair service of the afterburner liner in the con-
tract) so that B.H. Aircraft could bid on replacing the F414
afterburner liner. B.H. Aircraft’s theory has been that the
Navy impermissibly bundled the F414 afterburner liner in
the contract in violation of the Federal Acquisition Regula-
tion (“FAR”). The Navy contracting officer (“CO”) declined
to remove replacement of the F414 afterburner liner from
the PBL and issued the solicitation on March 31, 2021.
Case: 22-1766 Document: 67 Page: 4 Filed: 01/02/2024
4 B.H. AIRCRAFT COMPANY INC. v. US
In an April 28, 2021, letter to B.H. Aircraft, the Navy
CO explained that exclusion of afterburner liner replace-
ments was not warranted. The Navy CO stated that
“NAVSUP WSS has reviewed the synopsized and solicited
market basket and does not concur with B.H. [Aircraft]’s
contract bundling assertion. NSN 2840-01-480-8247 is cur-
rently being supported under contract N00383-18-D-P601,
and has been determined to be sole sourced to the Original
Equipment Manufacturer.” J.A. 648. The CO also found
that B.H. Aircraft was not a qualified bidder for the re-
placement work in any event.
B.H. Aircraft filed a bid protest complaint in the Court
of Federal Claims arguing that “the repair [of the F414 af-
terburner liner] should be segregated from the bundled
PBL.” J.A. 75. In its complaint, B.H. Aircraft conceded
that it “is not presently an approved ‘repair’ vendor,” J.A.
69, but contended that it was qualified to manufacture re-
placement afterburner liners and that the CO erred in con-
cluding otherwise.
The Court of Federal Claims dismissed B.H. Aircraft’s
complaint for lack of standing on the ground that the CO
had not erred because B.H. Aircraft, although approved to
manufacture F414 afterburner liners, was not a qualified
bidder, as B.H. Aircraft’s allegations and evidence “call[ed]
into question not only [its] capability to manufacture the
[F414 afterburner] liner but whether it even understands
how to make the [F414 afterburner] liner in question in the
first place.” B.H. Aircraft Co. Inc. v. United States, 158
Fed. Cl. 750, 767 (2022). The Court of Federal Claims also
dismissed for failure to state a claim because B.H. Air-
craft’s complaint did not “allege—and the record does not
support—that the instant procurement is a bundled con-
tract,” Id., since B.H. Aircraft made “no allegation of a sep-
arate smaller contract for F414 afterburner liners that is
being bundled into the instant solicitation” being chal-
lenged. Id. at 770 (emphasis omitted). Therefore, the
Court of Federal Claims found the complaint failed to
Case: 22-1766 Document: 67 Page: 5 Filed: 01/02/2024
B.H. AIRCRAFT COMPANY INC. v. US 5
adequately allege that the CO had erred in concluding that
this was not a bundled contract, as would be required un-
der the FAR provisions B.H. Aircraft attempted to invoke.
B.H. Aircraft appeals.
We have jurisdiction under 28 U.S.C. § 1295(a)(3).
DISCUSSION
Under our recent decision in CACI, the standing issue
here is a matter of statutory standing rather than jurisdic-
tion. CACI, 67 F.4th at 1151. “The standing issue here [for
a bid protest] presents a question of statutory standing ra-
ther than Article III standing.” Id. 1 Because the issues of
bidder qualifications and whether there is a bundled con-
tract to be unbundled overlap with the merits (the qualifi-
cation of a contractor being a quintessential merits issue),
the Court of Federal Claims reviews the decision of the CO
that there is no bundled contract—and that B.H. Aircraft
was not a qualified bidder—under the standard established
by the Contract Disputes Act. 41 U.S.C. § 7107(b)(2)(A);
PAI, 614 F.3d at 1351; Impresa, 238 F.3d at 1332 n.5.
Because the standing issue here is not jurisdictional, it
is not necessary that we decide it as a prerequisite to reach-
ing the merits (which here, as we noted, overlap with the
question of standing). See CACI, 67 F.4th at 1152, 1154
(declining to consider issues of statutory standing and in-
stead proceeding to merits). We do not reach the issue of
bidder qualifications. We instead turn to the Court of Fed-
eral Claims’ holding that B.H. Aircraft failed to state a
claim on which relief could be granted. We review the trial
court’s dismissal for failure to state a claim de novo. See
Dehne v. United States, 970 F.2d 890, 892 (Fed. Cir. 1992).
1 Because our decision was issued after briefing was
completed in the appeal now before us, neither the Court
of Federal Claims nor the parties had the benefit of our de-
cision in CACI.
Case: 22-1766 Document: 67 Page: 6 Filed: 01/02/2024
6 B.H. AIRCRAFT COMPANY INC. v. US
The Claims Court ultimately reviews the decision of the CO
to determine whether his actions “were ‘arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law.’” CACI, 67 F.4th at 1154.
Under 15 U.S.C. § 631(j)(3), federal agencies shall
“avoid unnecessary and unjustified bundling of contract re-
quirements.” “Bundling of contract requirements” is de-
fined as “consolidating 2 or more procurement
requirements for goods or services previously provided or
performed under separate smaller contracts into a solicita-
tion of offers for a single contract that is likely to be unsuit-
able for award to a small-business.” 15 U.S.C. § 632(o)(2).
The FAR similarly defines “bundling.” See FAR 2.101. As
the Court of Federal Claims concluded, “[p]laintiff simply
has not shown—or even properly alleged—that two or more
separate smaller contracts have been bundled together to
form the current solicitation.” B.H. Aircraft, 158 Fed. Cl.
at 771.
The Court of Federal Claims therefore correctly con-
cluded that B.H. Aircraft’s complaint failed to state a claim
on which relief could be granted. The Navy CO did not err
in determining that the bundling regulation was not vio-
lated. We need not reach the issue of bidder qualification
as to the replacement portion of the contract. Accordingly,
we affirm.
AFFIRMED