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United States Court of Appeals for the Federal Circuit
March 4, 2021, Decided
[*1331] O'Malley, Circuit Judge.
This is a bid protest case involving, inter alia, an implied-in-fact contract claim in the procurement context. Disappointed offeror [**2] Safeguard Base Operations, LLC ("Safeguard") appeals the final judgment of the United States Court of Federal Claims ("Claims Court") in favor of the eventual contract awardee, B&O Joint Venture, LLC ("B&O"), and the United States ("Government"). During the proposal evaluation process, the Government eliminated Safeguard's proposal from consideration because Safeguard omitted pricing information for sixteen contract line [*1332] item numbers ("CLINs") totaling $6,121,228.
On appeal, Safeguard asserts that the Claims Court erred by determining that the solicitation at issue required offerors to submit that pricing information and by determining that the solicitation provided notice that elimination was possible if that pricing information was omitted. Safeguard also contends that, even if it were required to submit the missing pricing information, the Claims Court erred by finding the omissions to be material and not subject to waiver or clarification. Finally, Safeguard contends that the Claims Court erred by denying its email request to supplement the administrative record through discovery and by denying its motion to supplement the administrative record with affidavits. Safeguard contends [**3] that these additional materials would establish that those evaluating its proposal failed to fairly and honestly consider it. Because the Claims Court did not err in any of those respects, we affirm.
In so doing, we also address a question of first impression—] whether the Claims Court has jurisdiction over a claim that the Government breached an implied-in-fact contract to fairly and honestly consider an offeror's proposal in the procurement context. That question has received conflicting answers from different Claims Court judges. We address it and conclude that the Claims Court has such jurisdiction under 28 U.S.C. § 1491(b)(1), making the issue reviewable under the Administrative Procedure Act ("APA").
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989 F.3d 1326 *; 2021 U.S. App. LEXIS 6339 **; 2021 WL 821472
SAFEGUARD BASE OPERATIONS, LLC, Plaintiff-Appellant v. UNITED STATES, B&O JOINT VENTURE, LLC, Defendants-Appellees
Prior History: [**1] Appeal from the United States Court of Federal Claims in No. 1:19-cv-00061-MBH, Senior Judge Marian Blank Horn.
Safeguard Base Operations, LLC v. United States, 144 Fed. Cl. 304, 2019 U.S. Claims LEXIS 962 (July 2, 2019)
Solicitation, offerors, bid, pricing, protest, procurement, amounts, administrative record, price information, omissions, proposals, clarification, eliminated, provisions, bidders, contracting, implied contract, price schedule, implied-in-fact, terms, judicial review, instructions, costs, waive, supplementation, referenced, notice, bias, disqualified, missing
Business & Corporate Compliance, Contracts Law, Types of Contracts, Contracts Implied in Fact, Public Contracts Law, Bids & Formation, Implied Contracts, Implied-in-Fact Contracts, Governments, Courts, Courts of Claims, Dispute Resolution, Jurisdiction, Implied-in-Law Contracts, Administrative Law, Agency Adjudication, Alternative Dispute Resolution, Bid Protests, Federal Government, Claims By & Against, Judicial Review, Standards of Review, Arbitrary & Capricious Standard of Review, De Novo Standard of Review, Motions, Competitive Proposals, Offer & Acceptance, Offers, Cost Contracts, Sealed Bids, Invitations for Bids, Costs & Prices, Price Analysis, Legislation, Interpretation, Civil Procedure, Appeals, Record on Appeal, Transportation Law, Carrier Duties & Liabilities, Freight Brokers & Forwarders, Administrative Record, Disclosure & Discovery