The United States Court of Federal Claims has sided with the U.S. Navy in a bid protest case brought by Aery Aviation, LLC (“Aery”). The case concerned the Navy’s award of a contract for Contracted Air Services (CAS) Electronic Warfare (EW) services to Phoenix Air Group, Inc. (“Phoenix”). Judge Richard A. Hertling issued the ruling on December 4, 2025, rejecting Aery’s challenges to the Navy’s evaluation of its proposal.
The Core of the Dispute
Aery alleged that the Navy made several errors in its evaluation of Aery’s proposal, ultimately leading to the contract being awarded to Phoenix. Specifically, Aery argued that the Navy:
* Improperly assigned a deficiency related to the ability of Aery’s aircraft to carry the ALQ-164 pod, an underwing pod used for electronic warfare training.
* Disparately treated Aery compared to Phoenix regarding the same issue.
* Failed to adequately consider Aery’s past performance, particularly its ability to continue work on a previous contract after losing a joint venture partner.
* Failed to follow evaluation criteria by not considering Aery’s most recent performance under the predecessor contract.
The Navy, on the other hand, maintained that its evaluation process was fair, rational, and in accordance with the law and the solicitation requirements.
Key Findings of the Court
Judge Hertling’s memorandum opinion addressed each of Aery’s primary arguments:
1. Technical Evaluation of the ALQ-164 Pod
The court found that the Navy’s decision to assign a deficiency to Aery’s proposal was justified. The Navy’s evaluation focused on whether Aery demonstrated that it could bring all of its proposed aircraft into compliance with the solicitation requirements, specifically the ability to carry the ALQ-164 pod. The court agreed with the Navy’s assessment that Aery’s proposal, while showing that some of its aircraft could be modified, did not adequately detail how the remaining aircraft could be certified to carry the ALQ-164 pod.
The court emphasized that the deficiency was not based on whether Aery’s aircraft were approved to carry the pod at the time of the initial proposal. Instead, the deficiency stemmed from Aery’s failure to present a clear and satisfactory plan to certify all of its aircraft for the pod.
2. Disparate Treatment Claim Rejected
Aery argued that the Navy treated its proposal unfairly by assigning it a deficiency for the ALQ-164 pod issue but not assigning a similar deficiency to Phoenix. The court dismissed this argument, stating that the two proposals were not comparable.
The court noted that Phoenix had a more comprehensive plan to modify its aircraft, including acquiring STCs (Supplemental Type Certificates) for its aircraft. Aery’s plan relied on modifying existing STCs, but the court found that this plan was not clearly articulated. Because the plans were different, the court determined that the Navy’s evaluation was not arbitrary or capricious.
3. Past Performance Evaluation Upheld
Aery argued that the Navy failed to adequately consider its past performance, particularly its performance on a previous contract after losing its joint venture partner. The court rejected this argument, stating the Navy was aware of Aery’s circumstances.
The court cited the record, which showed the Navy was fully aware that Aery had performed the previous contract alone after the joint venture partner left. The court also noted that the Navy considered improvements to Aery’s performance over time.
4. Relevancy of Recent Performance
Aery claimed that the Navy did not weigh Aery’s most recent performance under the predecessor contract. The court rejected this argument, stating that the Navy’s evaluation did refer to and consider the improvements.
Motion to Supplement the Record Denied
Aery also sought to add a February 2025 Program Management Review (PMR) to the administrative record. The court denied this motion, finding that the PMR was not necessary for effective judicial review. The court noted that the administrative record already contained enough information about Aery’s performance improvements.
Conclusion
The court concluded that the Navy’s evaluation of Aery’s proposal was not arbitrary or capricious. The court granted the Navy’s motion for judgment on the administrative record and denied Aery’s motion.