finding similarity in “TCI and Major Time Change Items (MTCI) Management, Subcontract Management . . . and Time Compliance TCTO/Technical Directive (TD) Management,” as well as number of aircraft, “Transition Approach,” “Performance, Trend Analysis and Reliability and Maintainability and [] Approach for Small Business Participation”
How later courts described this case
- finding similarity in “TCI and Major Time Change Items (MTCI) Management, Subcontract Management . . . and Time Compliance TCTO/Technical Directive (TD) Management,” as well as number of aircraft, “Transition Approach,” “Performance, Trend Analysis and Reliability and Maintainability and [] Approach for Small Business Participation”
- standing inquiry looks at “the combined impact of all agency decisions alleged to be unlawful” (emphasis in original)
- adopting “the only interpretation [of the solicitation] that harmonizes and gives reasonable meaning to all of the [s]olicitation’s provisions, without rendering any part superfluous or void”
- discussing when it is appropri- ate to supplement administrative record and noting “[t]he focal point for judicial review should be the administrative record already in existence”
Written by the judges who cited it.
The opinion
Case: 19-2261 Document: 71 Page: 1 Filed: 03/04/2021
United States Court of Appeals
for the Federal Circuit
______________________
SAFEGUARD BASE OPERATIONS, LLC,
Plaintiff-Appellant
v.
UNITED STATES, B&O JOINT VENTURE, LLC,
Defendants-Appellees
______________________
2019-2261
______________________
Appeal from the United States Court of Federal
Claims in No. 1:19-cv-00061-MBH, Senior Judge Marian
Blank Horn.
______________________
Decided: March 4, 2021
______________________
ALEX DANIEL TOMASZCZUK, Pillsbury Winthrop Shaw
Pittman LLP, Los Angeles, CA, argued for plaintiff-
appellant. Also represented by KEVIN REZA MASSOUDI,
AARON RALPH; ALEXANDER BREWER GINSBERG, McLean,
VA.
P. DAVIS OLIVER, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee United States.
Also represented by JEFFREY B. CLARK, ROBERT EDWARD
KIRSCHMAN, JR., DOUGLAS K. MICKLE; JAMES CALVIN
CAINE, Federal Law Enforcement Training Centers,
Case: 19-2261 Document: 71 Page: 2 Filed: 03/04/2021
2 SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES
United States Department of Homeland Security, Glynco,
GA.
RICHARD WILLIAM ARNHOLT, Bass Berry & Sims PLC,
Washington, DC, for defendant-appellee B&O Joint
Venture, LLC. Also represented by BRIAN IVERSON, TODD
OVERMAN, ROY TALMOR, SYLVIA YI.
______________________
Before PROST, Chief Judge, NEWMAN and O’MALLEY,
Circuit Judges.
Opinion for the court filed by Circuit Judge O’MALLEY.
Dissenting opinion filed by Circuit Judge NEWMAN.
O’MALLEY, Circuit Judge.
This is a bid protest case involving, inter alia, an im-
plied-in-fact contract claim in the procurement context.
Disappointed offeror 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 item numbers (“CLINs”) totaling $6,121,228.
On appeal, Safeguard asserts that the Claims Court
erred by determining that the solicitation at issue re-
quired 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 materi-
Case: 19-2261 Document: 71 Page: 3 Filed: 03/04/2021
SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES 3
al and not subject to waiver or clarification. Finally,
Safeguard contends that the Claims Court erred by deny-
ing its email request to supplement the administrative
record through discovery and by denying its motion to
supplement the administrative record with affidavits.
Safeguard contends 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 impres-
sion—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 pro-
posal 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), mak-
ing the issue reviewable under the Administrative Proce-
dure Act (“APA”).
I. BACKGROUND
This appeal requires a detailed background discus-
sion. In particular, we discuss the solicitation at issue,
the evaluation process, and the proceedings before the
Claims Court. For a more exhaustive background, see
Safeguard Base Operations, LLC v. United States, 144
Fed. Cl. 304 (2019).
A. The Solicitation
On October 11, 2017, the Department of Homeland
Security (“Government”) issued Solicitation No. HSFLGL-
17-R-00001 (the “Solicitation”) as a Request for Proposal
(“RFP”). The Government sought to award a valuable,
potentially multi-year contract for dorm management
services at the Federal Law Enforcement Training Center
in Glynco, Georgia. The Solicitation contemplated an
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4 SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES
initial base period of performance, followed by up to seven
twelve-month option periods.
The Solicitation outlined a commercial item acquisi-
tion for a firm-fixed price contract. The acquisition and
source selection were to be conducted, inter alia, under
Federal Acquisition Regulations (“FAR”), Parts 12 and 15
using the best value source selection process. 1 The Gov-
ernment was required to evaluate proposals based on
several non-price factors as well as price. The non-price
factors were approximately equal in importance to the
price factor.
Beyond these general terms, there are several por-
tions of the Solicitation that are relevant to this appeal—
(1) the pricing provisions, (2) Schedule B, (3) the elimina-
tion provisions, and (4) the clarification and waiver provi-
sions.
1. Pricing Provisions
At a minimum, proposals had to show “price and any
discount terms.” J.A. 1502. 2 The Solicitation explained
that “[t]he Government will evaluate offers for award
purposes by adding the total price for all options to the
total price for the basic requirement.” J.A. 1514. Price
was to be evaluated using “one or more of the price analy-
sis and/or cost realism techniques outlined in FAR 15.305
and 15.404.” J.A. 1519. Further, the Solicitation provid-
ed that “[p]rice will be evaluated to determine if the
offeror’s proposed price is fair and reasonable, complete,
balanced and/or realistic.” J.A. 1519. “Complete-
ness/Accuracy” meant that “[t]he offeror’s proposal is in
compliance with the Price Volume instructions in the
1 The FAR System is codified at 48 C.F.R., Chapter
1. For brevity, we refer to the FAR without corresponding
C.F.R. citations.
2 We cite to the non-confidential Joint Appendix.
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SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES 5
solicitation.” J.A. 1519. Those instructions required a
“detailed breakdown” of proposed costs by CLIN and a
“completed Schedule B.” J.A. 1513. If there was a dis-
crepancy between the price proposal and Schedule B, then
Schedule B governed.
2. Schedule B
Schedule B, which contained the basic terms of the
proposed bargained-for exchange, made up the first 30
pages of the Solicitation. In it, the Government listed the
supplies/services it sought from offerors by CLIN and
included blank spaces for offerors to submit what they
would charge in exchange for providing those sup-
plies/services.
The CLINs were four-digit numbers sometimes ac-
companied by two letters in ascending order—e.g., 0001,
0002, 0002AA, 0002AB, etc. 3 The first digit of each CLIN
corresponded to the relevant period of performance. For
example, any CLIN with an initial digit of zero concerned
the base period, while any CLIN with an initial digit of
one concerned the first twelve-month option period. The
Solicitation followed this pattern for all seven option
periods, repeating the description of each supply/service
for each period. For example, the description of a sup-
ply/service for CLIN 0001 matched the description of the
same supply/service for CLINs 1001, 2001, 3001, 4001,
5001, 6001, and 7001.
Each CLIN had a corresponding quantity and unit as
well as blank spaces for offerors to provide the unit price
and amount.
As originally issued, the Solicitation in Schedule B
pointedly instructed offerors “*****DO NOT SUBMIT
3 The Solicitation uses the terms ‘contract line item
number’ and ‘item number’ interchangeably.
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6 SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES
PRICING FOR THESE CLINS*****” for sixteen CLINs,
numbered X007AA and X007AB. 4 For those CLINs, the
Solicitation informed offerors that the Government itself
had provided the relevant amounts—even though such
information was missing.
Although Schedule B did not contain the necessary
amounts, the Solicitation still required that offerors
submit subtotals for all CLINs in each time period as well
as a grand total for all CLINs in all time periods. Obvi-
ously, it would have been impossible for an offeror to
submit accurate subtotals or grand totals without the
missing amounts.
At least one potential offeror inquired about the miss-
ing amounts. In response, the Government provided the
amounts for each of the 16 CLINs to all offerors and
explained that, “For bidding purposes please include the
following ‘not-to-exceed’ amounts in the applicable CLIN.”
J.A. 2223 (Government’s response to Question 9 referenc-
ing the Section B Price Schedule and Schedule B). See
also J.A. 2225 (Question 16 concerned a similar issue in
the context of Volume 3—Price, and the Government
referenced its response to Question 9). While this infor-
mation was clearly noted in the question and answer
portion of Amendment No. 0003, Schedule B itself was
never amended.
4 The sixteen CLINs are 0007AA, 1007AA, 2007AA,
3007AA, 4007AA, 5007AA, 6007AA, 7007AA, 0007AB,
1007AB, 2007AB, 3007AB, 4007AB, 5007AB, 6007AB,
and 7007AB. Like the Claims Court, we refer to these
CLINs as X007AA and X007AB, with the “X” representing
the initial digit corresponding to the performance period.
Throughout this opinion, we quote and cite the Solicita-
tion with respect to the base periods, CLINs 0007AA and
0007AB. The relevant language is the same for all CLINs
X007AA and X007AB.
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SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES 7
Notably, the Government responded to several addi-
tional questions concerning CLINs X007AA and/or
X007AB, and the questions typically referenced the
CLINs as appearing in “Schedule B” of the “Section B
Price Schedule.” See, e.g., J.A. 2223 (Questions 7 and 8).
Several questions referenced the “Section B Price Sched-
ule” without referencing “Schedule B” while referring to
specific CLINs from Schedule B. See, e.g., J.A. 2224–25
(questions 11–16). One question referenced the “Section
B Price Schedule” while referring to Government forms
that only appeared in Schedule B. See J.A. 2223 (Ques-
tion 6).
3. Elimination Provisions
In general, the Solicitation specified that any non-
compliance with its terms and conditions “may cause [an
offeror’s] proposal to be determined unacceptable or be
deemed non-responsive and excluded from consideration.”
J.A. 1507 (quoting Addendum to FAR 52.212-1(b)(1)).
More specifically, elimination was possible under a provi-
sion in a portion of the Solicitation labeled ‘Section A
Solicitation General Information.’ That provision stated:
“Pricing Schedule and Periods of Performance (POP)
Service dates for each CLIN are detailed in Section B.
Note: Exceptions to line item structure in Section B may
result in a bid not considered for award.” J.A. 1350
(emphasis added).
Although the preceding warning was clear, it was also
unusual because the portion of the Solicitation labeled
‘Section B Price Schedule’ did not appear to contain any
“line item structure” or pricing schedule and period of
performance service dates for “each CLIN.” The only such
details were found in Schedule B.
4. Clarifications and Waiver Provisions
According to the Solicitation, the Government intend-
ed to award a contract based on its evaluation of the
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8 SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES
proposals “without discussions with offerors.” Although
the Government reserved the right to conduct discussions
if it later deemed them necessary, the Solicitation made
clear that all initial offers “should contain the offeror’s
best terms.” J.A. 1505, 4503. The Government contem-
plated establishing a competitive range only if it deter-
mined that an award could not be made without
discussions. If the Government declined to seek discus-
sions, then the Government was permitted to seek clarifi-
cations from offerors, which by nature are less
substantive than discussions. See J.A. 1350; FAR 15.306.
The Solicitation also specified that the Government could
waive “informalities and minor irregularities” in an
offeror’s proposal. J.A. 1505 (quoting FAR 52.212-1(g)).
B. The Evaluation Process
The evaluation process included three selection deci-
sions. In each decision, the Government determined that
B&O’s proposal provided the best value for the Govern-
ment. In each decision, the Government faulted Safe-
guard’s proposal because, inter alia, Safeguard failed to
submit the pricing information for CLINs X007AA and
X007AB.
1. Critical Personnel
Three contracting personnel played roles in the pro-
posal evaluation process.
First, Joseph Williams was the source selection au-
thority and was tasked with making the final source
selection decision. Williams was also tasked with approv-
ing any course of action involving the establishment of a
competitive range or discussions.
Second, Sheryle Wood was the contracting officer and
Source Selection Evaluation Board (“SSEB”) chairperson.
As the contracting officer, Wood was tasked with deciding
whether to recommend establishing a competitive range
and to conduct discussions with offerors in that range. As
Case: 19-2261 Document: 71 Page: 9 Filed: 03/04/2021
SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES 9
the SSEB chairperson, Wood was tasked with managing
the SSEB’s overall activities, distributing workload, and
ensuring compliance with source selection information
security procedures. Wood also led one of the boards
comprising the SSEB—the Price Evaluation Board.
Third, James Caine was legal counsel for the acquisi-
tion. Caine was tasked with providing legal advice to
Williams and to the SSEB. Caine was a non-voting
member of the SSEB and was to “not participate in the
caucus process unless specifically asked to do so by the
board Leader.” J.A. 13 (citation omitted).
2. Timeline of Events
On March 16, 2018, the Government received seven
proposals from seven offerors, including Safeguard and
B&O. On March 22, 2018, Wood completed a Price Eval-
uation Report and observed that four offerors—including
Safeguard—had failed to include the required pricing
information for CLINs X007AA and X007AB. Safeguard’s
proposal did not include pricing for CLINs X007AA and
X007AB in any location—including in Safeguard’s sub-
mitted Schedule B.
Despite this, Wood recommended that Safeguard’s
price be determined fair and reasonable “without need for
discussion or exchanges with regard to price.” J.A. 13
(citation omitted). Wood also recommended that Safe-
guard be retained in the competitive range and that
calculation errors, inclusion of the missing pricing infor-
mation, and full breakdown of phase in costs and other
direct costs would be a “discussion element” for all years.
J.A. 13. In one portion of the Price Evaluation Report,
Wood increased Safeguard’s overall price by adjusting it
for the missing pricing information.
In the same report, Wood recommended that B&O’s
price be determined fair and reasonable “without need for
discussions or exchanges with regard to price.” J.A. 14.
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10 SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES
Wood recommended that B&O be retained in the competi-
tive range, once the competitive range was established.
J.A. 14.
i. First Source Selection Decision
On June 8, 2018, Williams completed the first Source
Selection Decision Document. Williams indicated that the
Government had decided not to establish a competitive
range or hold discussions with offerors and that B&O’s
proposal provided the best value to the Government.
Williams noted that only B&O and Prosperitus Solutions
could have been awarded a contract without discussions.
Williams observed that Safeguard’s proposal did not
comply with the instructions in several ways, including
the failure to include the pricing for CLINs X007AA and
X007AB. Williams stated that “awarding to [Safeguard]
presents some risk to the Government without a com-
pletely revised price proposal accounting for all costs.”
J.A. 15. Further, “[b]ecause of a non-compliant price
proposal, and a price that is unrealistically low, this
proposal should have been eliminated from the competi-
tion without a technical evaluation.” J.A. 15. Even with
discussions, a “substantial” update to their technical
proposal, and a “completely revised price proposal,” it was
unlikely that Safeguard would have “become much more
competitive.” J.A. 15.
On June 14, 2018, the Government sent a pre-award
notice to Safeguard indicating that it had selected B&O as
the apparent successful offeror. One day later, Safeguard
requested a debriefing. On the same day, Wood provided
a written debriefing indicating several errors in Safe-
guard’s proposal, including the absence of pricing for
CLINs X007AA and X007AB. Wood stated that, even
with a number of corrections—including adding the
missing CLIN data—the total price was still “well below
the IGE [(Independent Government Estimate)] and pre-
sents a slight performance risk.” J.A. 16. Wood warned
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SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES 11
Safeguard to follow the solicitation instructions carefully
in future submissions.
On June 21, 2018, Safeguard filed a protest at the
Government Accountability Office (“GAO”) challenging
the award to B&O and the Government’s decision to
assign Safeguard a deficiency for offering the Government
a certain no-charge benefit. It did not protest the Gov-
ernment’s other stated reasons for its award decision. On
July 16, 2018, the Government indicated it would take
corrective action as to the protest item and that Williams
would render a new award decision. On July 19, 2018,
the GAO dismissed the protest as moot.
ii. Second Source Selection Decision
On August 2, 2018, Williams issued a second Source
Selection Decision Document. Williams raised Safe-
guard’s rating for its technical approach, after removing
the protested deficiency, but again noted that Safeguard
had omitted the required pricing information. Williams
adjusted Safeguard’s price after accounting for its errors.
Nevertheless, Williams observed that: “Because of a non-
compliant price proposal with a questionable low price,
and Corporate Experience and Past Performance volumes
that were submitted without discerning between the
prime and sub-contractors in the joint venture, this
proposal could have been eliminated from the competition
without a technical evaluation.” J.A. 17. Williams again
noted that only B&O and Prosperitus Solutions could be
awarded a contract without discussions and that B&O’s
proposal provided the best value to the Government and
should be selected.
On August 7, 2018, the Government again awarded
the contract to B&O. The Government concluded that
“[b]ecause of their superior ratings and the identified
strengths, demonstrated relevant past efforts and perfor-
mance of the prime contractor, and a complete submitted
price that is reasonable and realistic, the price premium
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12 SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES
over [Safeguard’s] total evaluated price is justified for the
assurance of superior services when spread over the life of
a seven-year contract.” J.A. 18 (citation omitted).
On August 20, 2018, Safeguard filed another protest
at the GAO. This time, Safeguard argued that the Gov-
ernment had arbitrarily and capriciously evaluated
Safeguard’s past performance, did not justify the price
premium associated with B&O’s proposal correctly, and
that the Government’s actions were biased against Safe-
guard. This time, Safeguard also contended that it was
not required to submit pricing for CLINs X007AA and
X007AB. Safeguard asserted that it believed other offe-
rors did not include such pricing and “[t]herefore, it would
be arbitrary and capricious for the [Government] to fail to
apply the same evaluation criteria and scoring method to
the awardee’s proposal.” J.A. 18 (citation omitted).
On August 24, 2018, Safeguard filed an amended pro-
test at the GAO, asserting that the Government had
violated FAR 15.404-1(d)(3) (permitting some cost realism
analyses, but forbidding adjustments to a proposal’s
offered prices) by increasing the price of Safeguard’s
proposal to account for the missing price information.
Safeguard again asserted that the pricing information for
CLINs X007AA and X007AB was not required. Safeguard
further asserted that the Government engaged in dispar-
ate treatment to the extent it revised only Safeguard’s
proposed price upward.
On August 28, 2018, Caine sent a letter to the GAO
stating that the Government had discovered mistakes in
the evaluation process and would take corrective action by
making a new source selection decision. On August 31,
2018, the GAO dismissed Safeguard’s August 20 protest
and August 24 amended protest, again as moot.
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SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES 13
iii. Third Source Selection Decision
On September 20, 2018, Williams issued a third
Source Selection Decision Document. The Government
streamlined its analysis this time. It refused to make
price adjustments to reflect the omitted pricing and,
instead, concluded that the appropriate cause of action
was to disqualify all proposals which were non-compliant
on their face. The Government concluded, apparently
based on Caine’s legal advice, that price adjustments for
those CLINs were inconsistent with FAR 15.404-1(d)(3),
as Safeguard had contended in its protest. Williams
indicated that four offerors were not eligible for award
because each of their proposals failed to include the
Government-provided amounts for CLINs X007AA and
X007AB. On September 20, 2018, the Government sent
Safeguard a post-award notice that also functioned as a
written debriefing, indicating that B&O was the contract
awardee. In that notice, the Government stated that:
In general terms, [Safeguard’s] price proposal was
determined non-compliant because the price vol-
ume failed to include government provided
amounts for the Service Work Request CLINs,
which was required by Amendment 00003 [(sic)]
to the solicitation. The government response to
Question Number 9 specifically stated:[ ] A. For
bidding purposes please include the following ‘not-
to-exceed’ amounts in the applicable CLIN . . . The
solicitation further specifically stated the follow-
ing ‘Exceptions to the line item structure in Sec-
tion B may result in a bid not considered for
award.’ Therefore, [Safeguard] is not eligible for
award.
J.A. 20.
On September 25, 2018, Safeguard filed another bid
protest at the GAO followed by a supplemental protest on
October 12, 2018. Safeguard again asserted, inter alia,
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14 SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES
that it was not required to include pricing for CLINs
X007AA and X007AB. On December 14, 2018, the GAO
denied Safeguard’s protest, determining, inter alia, that
the Solicitation permitted the Government to reject
proposals that omitted the pricing information for CLINs
X007AA and X007AB.
C. Claims Court Proceedings
On January 11, 2019, Safeguard filed a complaint in
the Claims Court. On January 17, 2019, the Claims
Court granted B&O’s motion to intervene. Safeguard
alleged that the Government arbitrarily and capriciously
disqualified Safeguard’s proposal and violated an implied
contract to fairly and honestly consider Safeguard’s
proposal. To support its allegations, Safeguard attached
an affidavit from Diana Parks Curran, an attorney for
Safeguard and SRM Group, Inc. (“SRM”). 5 Safeguard
asserted that the Claims Court had jurisdiction under 28
U.S.C. § 1491(b) and under its jurisdiction to consider
Safeguard’s implied contract claim.
On February 26, 2019, the Government filed the ad-
ministrative record. On February 28, 2019, the Claims
Court issued an order instructing the parties to notify the
court of any disagreements regarding the completeness of
the administrative record. On March 4, 2019, Safeguard
informed the court via email that the parties disputed
whether the administrative record was complete. Safe-
guard recounted that it had asked the Government to
allow Safeguard to depose the contracting officer, the
source selection authority, and the legal advisor and to
supplement the administrative record with the deposition
transcripts. Safeguard reported that the Government
5 Under an earlier-awarded contract, SRM had pro-
vided the same dorm management services at issue in the
Solicitation. SRM owned 49% of Safeguard.
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SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES 15
opposed the taking of those depositions. Safeguard stated
that it was prepared to participate in a call to discuss the
issue or to file a motion if so directed by the court.
Two days later, the Claims Court denied Safeguard’s
request to take the depositions as insufficiently supported
at that time, but it required the Government to investi-
gate whether the administrative record was complete,
particularly with respect to documents relevant to the
source selection and “documents relevant to the disquali-
fication of other offerors in the procurement for the same
or similar reason as a result of which [Safeguard] was
eliminated.” J.A. 144. The court also required a joint
status report regarding the administrative record.
In a March 12, 2019 joint status report, the parties
indicated that Safeguard continued to seek supplementa-
tion, but this time with an affidavit from Curran and an
affidavit from Sadananda Suresh Prabhu, the president of
SRM. The Government and B&O opposed supplementa-
tion. There was no indication that Safeguard continued to
seek depositions of the contracting officials. On the same
day, Safeguard moved to supplement with the Curran and
Prabhu affidavits, but did not mention the need for depo-
sitions.
Curran’s affidavit had been attached to the amended
complaint and remained unchanged. In Prabhu’s affida-
vit, he indicated that Caine denigrated Prabhu during
earlier litigation between SRM and the Government and
that Wood had vowed to never work with Prabhu or SRM
again. Prabhu also alleged that Wood told him that no
one who sued the Government—referencing the prior
litigation—had been awarded a later contract.
On March 15, 2019, the Government filed a corrected
administrative record with additional documents. On
March 22, 2019, after holding a hearing on the issue, the
Claims Court denied Safeguard’s motion to supplement as
not warranted because it found that the affidavits were
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16 SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES
not necessary for effective judicial review. On April 2,
2019, Safeguard and the Government filed cross-motions
for judgment on the administrative record. On the same
date, B&O filed a motion to dismiss, or in the alternative,
a cross-motion for judgment on the administrative record.
On July 2, 2019, the Claims Court granted the Gov-
ernment’s and B&O’s motions for judgment on the admin-
istrative record; denied B&O’s motion to dismiss; and
denied Safeguard’s motion for judgment on the adminis-
trative record.
The Claims Court reviewed the administrative record
under the standards set forth in the APA pursuant to 28
U.S.C. § 1491(b). The court concluded that Safeguard and
other offerors were required to include the Government-
provided amounts for CLINs X007AA and X007AB in
their proposals and that the Government had not arbi-
trarily and capriciously disqualified Safeguard. The court
determined that the Solicitation’s statement that
“[e]xceptions to the line item structure in Section B may
result in a bid not considered for award” provided notice
to offerors that they had to include the pricing infor-
mation because Section B included Schedule B. The court
concluded that Safeguard’s omissions were material
omissions that could not have been clarified without
discussions or waived, and that the Government did not
abuse its discretion in declining to seek clarifications.
The court also determined that the Government had not
breached any implied duty of good faith and fair dealing.
The court explained that, in each source selection deci-
sion, the Government consistently determined that Safe-
guard’s proposal was non-compliant based on its failure to
include the pricing information for CLINs X007AA and
X007AB and that Safeguard’s proposal should have been
eliminated without a technical evaluation.
Although Safeguard’s two proffered affidavits were
not part of the administrative record, the court examined
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SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES 17
them and stated that, even if those affidavits had been
included, they would not have affected the outcome. The
court explained that the affidavits (1) did not concern the
ultimate decision-maker, Williams; (2) indicated that
Wood was unfavorably disposed towards Safeguard, while
the record reflected otherwise since she treated Safeguard
fairly and sought to maintain, not disqualify, Safeguard
in consideration for the contract award; and (3) otherwise
concerned Caine whose role in the evaluation process was
limited.
On July 3, 2019, the Claims Court entered final
judgment in favor of the Government and B&O. Safe-
guard timely appealed, and we have jurisdiction under 28
U.S.C. § 1295(a)(3).
II. DISCUSSION
We begin, as we must, by examining whether the
Claims Court had jurisdiction. We then recite the appli-
cable standards of review and turn to the merits, address-
ing the four issues raised by Safeguard on appeal.
Ultimately, we affirm the Claims Court’s final judgment.
A. Jurisdiction
“As an appellate court, we must be satisfied that the
court whose opinion is the subject of our review properly
exercised jurisdiction, regardless of whether the parties
challenge the lower court’s jurisdiction.” John R. Sand &
Gravel Co. v. United States, 457 F.3d 1345, 1353 (Fed.
Cir. 2006). “[W]e review the Claims Court’s findings of
fact related to jurisdictional issues for clear error.” Id.
We review de novo the Claims Court’s jurisdiction as a
question of law. Id. at 1354.
Here, Safeguard alleged, inter alia, that the Govern-
ment breached an implied-in-fact contract to fairly and
honestly consider Safeguard’s proposal for the procure-
ment at issue. The Claims Court conceivably could have
had jurisdiction under 28 U.S.C. § 1491(a)(1), which
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18 SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES
concerns implied contracts generally, or § 1491(b)(1),
which concerns procurement bid protests. 6 This is im-
portant because the applicable standard of review differs
depending upon the governing jurisdictional predicate.
1. Relevant History
As we have noted, “[t]he history of the judicial review
of government contracting procurement decisions is both
long and complicated.” Impresa Construzioni Geom.
Domenico Garufi v. United States, 238 F.3d 1324, 1331
(Fed. Cir. 2001).
In 1940, the Supreme Court held that private parties
lacked standing to challenge Government contract awards
for violation of procurement law because Congress enact-
ed procurement laws to protect the Government, rather
than those contracting with the Government. See Perkins
v. Lukens Steel Co., 310 U.S. 113, 126 (1940).
But, in 1956, the Claims Court 7 found that disap-
pointed bidders could sue to recover the costs of preparing
a bid under an implied contract theory that the Govern-
ment would “give fair and impartial consideration to [the
disappointed bidder’s] bid.” Heyer Prods. Co. v. United
States, 140 F. Supp. 409, 413 (Ct. Cl. 1956). At the time,
6 Compare 28 U.S.C. § 1491(a)(1) (“jurisdiction to
render judgment upon any claim against the United
States founded . . . upon any express or implied contract
with the United States”) with § 1491(b)(1) (“jurisdiction to
render judgment on an action by an interested party
objecting to a solicitation by a Federal agency for bids or
proposals for a proposed contract or to a proposed award
or the award of any contract or any alleged violation of
statute or regulation in connection with a procurement or
proposed procurement”).
7 For simplicity, we refer to each predecessor court
of the Claims Court as the Claims Court.
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SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES 19
the Claims Court could only provide monetary relief,
typically in the recovery of bid preparation and proposal
costs—not injunctive or declaratory relief regarding the
procurement itself. See David S. Black & Gregory R.
Hallmark, Procedural Approaches to Filling Gaps in the
Administrative Record in Bid Protests Before the U.S.
Court of Federal Claims, 43 Pub. Cont. L.J. 213, 219
(2014). See also Frederick W. Claybrook, Jr., The Initial
Experience of the Court of Federal Claims in Applying the
Administrative Procedure Act in Bid Protest Actions –
Learning Lessons All Over Again, 29 Pub. Cont. L.J. 1
(1999).
The court in Heyer did not cite the relevant jurisdic-
tional statute—28 U.S.C. § 1491—but, at the time, the
statute contained the same operative language that
appears in current § 1491(a)(1)—providing the court with
jurisdiction over claims based on an express or implied
contract with the United States. See Act of Sept. 3, 1954,
ch. 1263, § 44(b), 68 Stat. 1226, 1241–42. These implied
contract cases have been—and still are—interpreted as
limited to implied-in-fact contracts. See generally Freder-
ick W. Claybrook, Jr., Wrong from the Start: Withholding
Implied-in-Law Contract Jurisdiction from the Court of
Claims, 46 Pub. Cont. L.J. 1 (2016). At the time of Heyer,
§ 1491 did not mention possible relief and was not divided
into any subsections.
In 1970, the United States Court of Appeals for the
D.C. Circuit concluded that, because of the intervening
passage of the APA, Perkins was no longer controlling law
and district courts could review procurement decisions of
Government agencies by applying the review standards in
the APA. See Scanwell Labs., Inc. v. Shaffer, 424 F.2d
859 (D.C. Cir. 1970). Several other federal courts of
appeal adopted this reasoning. See, e.g., Impresa, 238
F.3d at 1331 (citing cases from the First and Sixth Cir-
cuits). Under Scanwell, disappointed bidders could now
challenge contract awards in federal district court for
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20 SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES
alleged violations of procurement laws or regulations or
for lack of rationality. Id.
In 1982, Congress amended 28 U.S.C. § 1491 in the
Federal Courts Improvement Act of 1982 (“FCIA”), Pub.
L. No. 97–164, § 133(a), 96 Stat. 25, 40. Under the FCIA,
§ 1491 was split into subsections (a)(1)–(3) and (b). In
§ 1491(a)(3), the FCIA expressly permitted the Claims
Court to grant declaratory, equitable, and extraordinary
relief, including injunctive relief on any contract claim
brought before the contract was awarded. The operative
statutory language authorizing the court’s implied con-
tract jurisdiction remained unchanged, but the FCIA
placed that language in § 1491(a)(1). New § 1491(b)
contained language precluding the court from exercising
jurisdiction over certain actions concerning the Tennessee
Valley Authority and the Court of International Trade.
In 1983, this court concluded that, after the FCIA, the
Claims Court only could consider implied contract claims
in the pre-award context, but that it now had the authori-
ty to provide a broader scope of relief in that context.
This Court reasoned that Congress had not broadened the
scope of the Claims Court’s jurisdiction over implied
contract claims in the bid protest context, but had broad-
ened the scope of relief that could be provided. See gener-
ally United States v. John C. Grimberg Co., 702 F.2d 1362
(Fed. Cir. 1983) (en banc).
In 1996, Congress enacted the Administrative Dispute
Resolution Act of 1996 (“ADRA”), Pub. L. No. 104–320,
§ 12, 110 Stat. 3870, 3874–76. The ADRA redesignated
former § 1491(b) as § 1491(c) and removed former
§ 1491(a)(3) (providing expanded relief powers).
The ADRA created new § 1491(b), which included
(b)(1)–(4). Under § 1491(b)(1), the Claims Court was
given jurisdiction to hear bid protests by disappointed
bidders, regardless of whether the protest was pre-award
or post-award. Under the ADRA, new § 1491(b)(2) per-
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SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES 21
mitted “any relief that the court considers proper, includ-
ing declaratory and injunctive relief except that any
monetary relief shall be limited to bid preparation and
proposal costs.” New § 1491(b)(4) required judicial review
pursuant to the APA standards in 5 U.S.C. § 706. Alt-
hough Congress added § 1491(b)(1) in the ADRA, Con-
gress retained the operative language of § 1491(a)(1),
under which the Claims Court previously had jurisdiction
to hear claims concerning implied contracts with the
Government.
In 2010, this court determined that the Claims Court
continued to possess jurisdiction under § 1491(a) over
implied contracts outside of the procurement context—
e.g., the sale of government property—“where the new
statute [§ 1491(b)(1)] does not provide a remedy.” Res.
Conservation Grp., LLC v. United States, 597 F.3d 1238,
1245 (Fed. Cir. 2010).
The court stated:
Before enactment of section 1491(b)(1), the Court
of Federal Claims exercised jurisdiction over solic-
itations for the sale of government property, just
as it did in the procurement area. The new stat-
ute on its face does not repeal the earlier jurisdic-
tion. The government argues, however, that
continuation of the implied-in-fact jurisdiction
would be inconsistent with the purposes of the
ADRA, which clearly was designed to place all bid
protest challenges in a single court (after a sunset
period) under a single standard (the APA stand-
ard). We agree that Congress intended the
1491(b)(1) jurisdiction to be exclusive where
1491(b)(1) provided a remedy (in procurement
cases). The legislative history makes clear that
the ADRA was meant to unify bid protest law in
one court under one standard. However, it seems
quite unlikely that Congress would intend that
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22 SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES
statute to deny a pre-existing remedy without
providing a remedy under the new statute.
Id. at 1245–46 (footnote omitted).
Since the enactment of the ADRA, this court has not
addressed whether the Claims Court still has implied-in-
fact contract jurisdiction in the procurement context, and
if so, whether that jurisdiction falls under § 1491(a) or (b).
Different judges at the Claims Court have reached differ-
ent conclusions. Some Claims Court judges have conclud-
ed that such jurisdiction no longer exists. See Linc Gov’t
Servs., LLC v. United States, 96 Fed. Cl. 672, 693 (2010);
Metro. Van & Storage Co. v. United States, 92 Fed. Cl.
232, 249 n.7 (2010). At least one Claims Court judge has
concluded that such jurisdiction exists under § 1491(a).
See L-3 Commc’ns Integrated Sys., L.P. v. United States,
94 Fed. Cl. 394, 398 (2010). But other Claims Court
judges have concluded that such jurisdiction exists under
§ 1491(b)(1). See J.C.N. Constr., Inc. v. United States, 107
Fed. Cl. 503 (2012); Castle-Rose, Inc. v. United States, 99
Fed. Cl. 517, 531 (2011); Bilfinger Berger AG Sede Sec-
ondaria Italiana v. United States, 97 Fed. Cl. 96, 151–52
(2010).
2. The Claims Court Had Jurisdiction Here
Addressing the issue for the first time, we conclude
that the Claims Court has jurisdiction over implied-in-fact
contract claims in the procurement context under
§ 1491(b)(1), and only § 1491(b)(1).
Statutory interpretation starts with the plain lan-
guage of the statute. When interpreting a statute,
however, courts must consider not only the bare
meaning of each word but also the placement and
purpose of the language within the statutory
scheme. The meaning of statutory language,
plain or not, thus depends on context.
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SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES 23
Barela v. Shinseki, 584 F.3d 1379, 1382–83 (Fed. Cir.
2009) (citations omitted). “Courts may also rely on legis-
lative history to inform their interpretation of statutes.”
N.Y. & Presbyterian Hosp. v. United States, 881 F.3d 877,
887 (Fed. Cir. 2018). Here, the plain language of 28
U.S.C. § 1491, the statutory context, and the legislative
history demonstrate that Congress intended the Claims
Court to have jurisdiction over implied-in-fact contract
claims in the procurement bid protest context under 28
U.S.C. § 1491(b)(1).
Section 1491(a)(1) appears to provide the Claims
Court with jurisdiction over claims against the Govern-
ment founded upon any “implied contract” with the Gov-
ernment. But § 1491(b)(1) specifically provides the
Claims Court with jurisdiction over procurement bid
protest matters.
The legislative history indicates that Congress did not
intend to limit the Claims Court’s jurisdiction over any
type of procurement bid protest; it, instead, intended to
consolidate jurisdiction over all such matters in the
Claims Court. The legislative history also indicates that
Congress intended for the APA standard of review to
apply in all such cases. According to the Conference
Report to the ADRA:
This section [(referring to the changes to pre-
existing § 1491)] also applies the Administrative
Procedure Act standard of review previously ap-
plied by the district courts (5 U.S.C. sec. 706) to
all procurement protest cases in the Court of Fed-
eral Claims. It is the intention of the Managers to
give the Court of Federal Claims exclusive juris-
diction over the full range of procurement protest
cases previously subject to review in the federal
district courts and the Court of Federal Claims.
This section is not intended to affect the jurisdic-
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24 SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES
tion or standards applied by the Court of Federal
Claims in any other area of the law.
H.R. Rep. No. 104–841, at 10 (1996).
As we expressed in Resource Conservation Group, it
would have been anomalous for Congress to deny a pre-
existing remedy without providing a remedy under the
new subsection in § 1491(b). But that result is avoided if
we construe § 1491(b)(1) to provide the Claims Court with
jurisdiction over implied-in-fact contract claims in the
procurement context and construe § 1491(a) to govern all
other implied-in-fact contract claims. Section 1491(b)(2)
explicitly authorizes the Claims Court to grant the relief
historically associated with implied contract bid protest
claims in the procurement context—“monetary relief
limited to bid preparation and proposal costs” while also
permitting other forms of relief previously available under
former § 1491(a)(3).
For these reasons, we conclude that the Claims Court
has jurisdiction over such claims under § 1491(b)(1) and
only § 1491(b)(1).
B. Standards of Review
Given the foregoing, we adopt the traditional stand-
ards of review applicable in other bid protest cases
brought under § 1491(b)(1) to bid protests cases which
also raise implied-in-fact contract claims in the procure-
ment context. We review bid protests under the APA, see
28 U.S.C. § 1491(b)(4) (citing 5 U.S.C. § 706), “by which
an agency’s decision is to be set aside only if it is arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” Per Aarsleff A/S v. United
States, 829 F.3d 1303, 1309 (Fed. Cir. 2016) (citation
omitted). See also Impresa, 238 F.3d at 1332 n.5 (citing
§ 706(2)(D) “without observance of procedure required by
law” as also applicable).
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SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES 25
“[P]rocurement decisions are subject to a ‘highly def-
erential rational basis review.’” PAI Corp. v. United
States, 614 F.3d 1347, 1351 (Fed. Cir. 2010) (citation
omitted). “Applying this highly deferential standard, the
court must sustain an agency action unless the action
does not ‘evince[ ] rational reasoning and consideration of
relevant factors.’” Id. (citation omitted). “We review
rulings on motions for judgment on the administrative
record de novo.” Id. “Interpretation of [a bid] solicitation
is a question of law’ that is reviewed de novo.” Per
Aarsleff, 829 F.3d at 1309 (citation omitted). We review
the Claims Court’s evidentiary determinations, including
determinations to grant or deny a motion to supplement
the administrative record, for abuse of discretion. Axiom
Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379
(Fed. Cir. 2009).
C. The Merits: The Claims Court Did Not Err
The Claims Court did not commit any of the four er-
rors alleged by Safeguard on appeal. First, the Claims
Court did not err by misinterpreting the Solicitation as
requiring offerors to submit the Government-provided
amounts for CLINs X007AA and X007AB. Second, the
Claims Court did not err by interpreting the Solicitation
as providing notice that offerors could be eliminated from
consideration for failing to include those amounts. Third,
the Claims Court did not err by determining that Safe-
guard’s omissions of the amounts were material and could
not have been waived or resolved by clarifications.
Fourth and finally, the Claims Court did not err by deny-
ing Safeguard’s email request and separate motion to
supplement the administrative record.
1. Submitting the Pricing Information
We apply de novo review to the Claims Court’s inter-
pretation of the Solicitation, and we apply the same
principles concerning the interpretation of Government
contracts to the interpretation of Government solicita-
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26 SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES
tions. Banknote Corp. of Am., Inc. v. United States, 365
F.3d 1345, 1353 & n.4 (Fed. Cir. 2004). A solicitation “is
ambiguous only if its language is susceptible to more than
one reasonable interpretation.” Id. at 1353. We must
consider the Solicitation as a whole and interpret “it in a
manner that harmonizes and gives reasonable meaning to
all of its provisions.” Id. “An interpretation that gives
meaning to all parts of the contract [or solicitation] is to
be preferred over one that leaves a portion of the contract
[or solicitation] useless, inexplicable, void, or superflu-
ous.” NVT Techs., Inc. v. United States, 370 F.3d 1153,
1159 (Fed. Cir. 2004).
Here, while the solicitation is hardly a model of clari-
ty, there is only one reasonable way to interpret the
Solicitation; offerors were required to submit the Gov-
ernment-provided amounts in their proposal totals. This
is the only interpretation that harmonizes and gives
reasonable meaning to all of the Solicitation’s provisions,
without rendering any part superfluous or void. The
Solicitation instructed offerors “DO NOT SUBMIT
PRICING FOR THESE CLINS” while also stating “[f]or
bidding purposes please include the following ‘not-to-
exceed’ amounts in the applicable CLIN.” J.A. 1322,
2223. The way to understand and harmonize these provi-
sions is to interpret ‘pricing’ as offeror-provided pricing.
In Schedule B, the Solicitation referenced the
“amount listed” and “amount provided” variously as a
Government “ceiling,” a “‘not-to-exceed’ amount,” and a
“lump sum.” J.A. 1322–23 (capitalization varies in origi-
nal). True, there was no such “amount listed” or “amount
provided” initially. But, after a potential offeror noted the
discrepancy and inquired about it, the Government not
only provided the missing amounts, but also emphasized
the fact that offerors were required to include those
amounts under the relevant CLIN. The Solicitation’s
continued instruction not to submit ‘pricing’ makes sense
in the context of the express instruction to include the
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SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES 27
Government-provided amounts, if ‘pricing’ refers to offe-
ror-provided pricing.
Safeguard’s alternative reading—that ‘pricing’ re-
ferred to all types of pricing information and that the
Government itself would later “please include” the
amounts in an awarded contract—is not a reasonable one.
It neither harmonizes nor provides reasonable meaning to
all provisions. It effectively renders the “please include”
instruction useless and inexplicable. Safeguard never
explains why the Solicitation would instruct offerors to
“DO NOT SUBMIT PRICING,” but instruct the Govern-
ment to “please include” the amounts it provided in re-
sponse to Question 9. It makes little sense for the
Government to answer a potential offeror’s question by
responding to itself—i.e., the Government—with a ‘note to
self.’
Safeguard complains that limiting ‘pricing’ to offeror-
provided pricing impermissibly inserts additional lan-
guage into the Solicitation and changes its plain meaning.
But Safeguard incorrectly assumes that its particular
interpretation of ‘pricing’ is correct, without explaining
why it is reasonable given the context. At least one other
potential bidder clearly understood the difference between
‘pricing’ and Government-provided amounts when it noted
the absence of the Government-provided amounts from
the Solicitation. Once the Government corrected the fact
that the amount quantities had been overlooked, any
confusion was removed. 8
8 Safeguard argues that, to the extent the “DO NOT
SUBMIT PRICING” provisions and the provision requir-
ing certain Government-provided amounts to be included
were contradictory, we must rely on the Solicitation’s
Order of Precedence Clause. Because we find no such
contradiction, we reject this argument.
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28 SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES
2. Notice of Possible Elimination
The Claims Court also did not err in determining that
the Solicitation provided notice that an offeror’s proposal
could be eliminated from consideration for failing to
include the pricing for CLINs X007AA and X007AB by the
statement in Section A that “[e]xceptions to line item
structure in Section B may result in a bid not considered
for award,” because Section B necessarily included Sched-
ule B. We must consider the Solicitation as a whole and
interpret “it in a manner that harmonizes and gives
reasonable meaning to all of its provisions.” Banknote,
365 F.3d at 1353. The only reasonable interpretation is
that the Solicitation provided adequate notice because
Section B included Schedule B.
In ‘Section A Solicitation General Information,’ the
Solicitation stated:
Pricing Schedule and Periods of Performance
(POP) Service dates for each CLIN are detailed in
Section B. Note: Exceptions to line item structure
in Section B may result in a bid not considered for
award.
J.A. 1350 (emphasis added).
Although Section A referred to the pricing schedule
and periods of performance service dates for each CLIN as
being detailed in “Section B” and the line item structure
as appearing in “Section B,” none of these details ap-
peared in the Solicitation in the portion labeled ‘Section B
Price Schedule.’ That portion of the Solicitation was later
amended to reference one CLIN, but still did not detail
any price schedule and periods of performance service
dates for “each CLIN” or contain any “line item struc-
ture.” Instead, that portion of the Solicitation contained
only general information about Schedule B—the actual
price schedule organized by CLIN. This makes sense in
light of the other label for that portion—‘Section B Price
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SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES 29
Schedule General Information’ as shown on page 31 of the
Solicitation.
The rest of the Solicitation similarly referred to Sec-
tion B as containing details found only in Schedule B. For
example, Question 6 of Amendment No. 0003 referred to
the “Section B Price Schedule” in terms of Government
forms SF 1449 and Optional Form 336—but these forms
were only used for Schedule B. Question 6 also referenced
CLINs from Schedule B. Similarly, Questions 7 and 8
referenced “Section B Price Schedule: Schedule B” and
specific CLINs from Schedule B. Questions 11–16 also
referenced the “Section B Price Schedule” while referring
to specific CLINs from Schedule B.
Reading the Solicitation as a whole, the interpretation
that harmonizes and gives meaning to all of these provi-
sions is one in which Schedule B is part of Section B, as
the Claims Court concluded. Safeguard offers no compel-
ling alternative interpretation or explanation.
Notably, the Solicitation stated that any noncompli-
ance “may cause [an offeror’s] proposal to be determined
unacceptable or be deemed non-responsive and excluded
from consideration.” J.A. 1507 (quoting Addendum to
FAR 52.212-1(b)(1)). Safeguard and other offerors were
clearly on notice that exceptions to the line item structure
of Schedule B could result in elimination. Safeguard’s
multiple failures to submit the pricing information for the
sixteen CLINs X007AA and X007AB were such excep-
tions.
3. Clarifications and Waiver
The Claims Court similarly did not err by determin-
ing that Safeguard’s omissions of the pricing information
for CLINs X007AA and X007AB were material, not re-
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30 SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES
solvable by clarifications, nor subject to waiver. 9 Regard-
less of whether the omissions were capable of clarification
or waiver, moreover, the Government had discretion to
seek clarifications or apply waiver and did not abuse its
discretion by declining both options.
i. Clarifications
Under FAR 15.306(a)(1), (2), clarifications are “limited
exchanges” in which the Government is permitted—but
not required—to allow offerors to “clarify certain aspects
of proposals (e.g., the relevance of an offeror’s past per-
formance information and adverse past performance
information to which the offeror has not previously had an
opportunity to respond) or to resolve minor clerical er-
rors.” “Clarifications are not to be used to cure proposal
deficiencies or material omissions, materially alter the
technical or cost elements of the proposal, or otherwise
revise the proposal.” Dell Fed. Sys., L.P. v. United States,
906 F.3d 982, 998 (Fed. Cir. 2018) (citation omitted). Cf.
Info. Tech. & Applications Corp. v. United States, 316
F.3d 1312, 1323 (Fed. Cir. 2003) (“There is no require-
ment in the regulation that a clarification not be essential
for evaluation of the proposal.”).
Here, Safeguard’s omissions were incapable of clarifi-
cation because they were proposal deficiencies and mate-
rial omissions that, if clarified, would have materially
altered the cost elements of the proposal and revised the
proposal. They were not minor clerical errors.
9 It is ironic that Safeguard even makes these ar-
guments after having protested the contracting officials’
efforts to add the missing amounts into Safeguard’s price
proposal. It effectively contends here that the contracting
officials should have done via clarification or waiver what
it argued FAR 15.404-1(d)(3) prohibits.
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SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES 31
This is evident from the many provisions in the Solici-
tation that emphasized the necessity of including the
amounts for pricing purposes. The omissions constituted
“[e]xceptions to [the] line item structure in Section B” and
therefore “may result in a bid not considered for award.”
J.A. 1350. The amounts were necessarily required in a
completed “Section B price and price breakdown.” J.A.
1508. Similarly, the price proposal had to be “complete”—
i.e., “compliance with the Price Volume instructions in the
solicitation.” J.A. 4829. Those instructions required a
“completed Schedule B.” J.A. 4823.
More directly, the importance of the amounts were
emphasized in the Government’s response to Question 9
(“please include” the pricing information); in FAR 52.212-
1 (“[a]s a minimum, offers must show . . . Price and any
discount terms” and “[o]fferors shall provide a detailed
breakdown of how it arrived at proposed cost as follows:
Contract Line Item Number”); and in the Addendum to
FAR 52.212-1 (the “[p]rice proposal shall include price for
the phase-in period, base period and seven option peri-
ods.”). Proposals would be evaluated by adding the total
price for all option periods to the total price for the basic
requirement. FAR 52.212-1(g) required the offeror to
include its “best terms from a price and technical stand-
point.” The Government evaluated the proposals based
on price as an important factor—roughly equal to all
other factors combined.
Safeguard’s failure to include the pricing information
meant that its total price was not only inaccurate, but
inaccurate in a significant way. It was $6,121,228 lower
than it should have been. This was not an inconsequen-
tial or negligible amount. More than the inaccurate price
itself, Safeguard’s omissions prevented the Government
from properly evaluating Safeguard’s proposal. As Wil-
liams noted, Safeguard needed “a completely revised price
proposal accounting for all costs.” J.A. 15. The omissions
were significant enough that they resulted in the elimina-
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32 SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES
tion of all four proposals that contained them. They were
far from immaterial.
ii. Waiver
Safeguard’s omissions were not waivable for the same
reasons. Under FAR 52.212-1(g), the Government may
waive “informalities and minor irregularities.” While this
court has not examined that FAR provision in a preceden-
tial opinion, in a non-precedential opinion, we emphasized
that waiver under FAR 52.212-1(g) is discretionary. See
Strategic Bus. Sols., Inc. v. United States, 711 F. App’x
651 (Fed. Cir. 2018) (declining to find that the Govern-
ment was required to waive a protestor’s failures to redact
necessary information). We agree.
FAR 14.405 provides examples of what might consti-
tute a minor informality or irregularity. 10 Safeguard’s
omissions are materially different from those examples.
For instance, FAR 14.405 provides that:
A minor informality or irregularity is one that is
merely a matter of form and not of substance. It
also pertains to some immaterial defect in a bid or
variation of a bid from the exact requirements of
the invitation that can be corrected or waived
without being prejudicial to other bidders. The
defect or variation is immaterial when the effect
on price, quantity, quality, or delivery is negligible
when contrasted with the total cost or scope of the
supplies or services being acquired. . . . Examples
of minor informalities or irregularities include
failure of a bidder to—
10 “When determining the plain meaning of a regula-
tion a court may look to the language of related regula-
tions.” JBLU, Inc. v. United States, 813 F.3d 1377, 1382
(Fed. Cir. 2016); see also Centech Grp., Inc. v. United
States, 554 F.3d 1029, 1038 (Fed. Cir. 2009).
Case: 19-2261 Document: 71 Page: 33 Filed: 03/04/2021
SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES 33
(a) Return the number of copies of signed bids re-
quired by the invitation;
(b) Furnish required information concerning the
number of its employees;
(c) Sign its bid, . . .
(d) Acknowledge receipt of an amendment to an
invitation for bids, . . . ; and
(e) Execute the representations with respect to
Equal Opportunity and Affirmative Action Pro-
grams . . . .
Safeguard’s omissions were unlike these minor fail-
ings. They were omissions of substance, not form. They
concerned material defects and variations from the exact
requirements that would have been prejudicial to other
bidders unless the same omissions were waived for them
as well. The roughly $6 million increase in price was not
negligible when contrasted with the total cost or scope of
the services being acquired.
iii. Discretion to Waive or Seek Clarifications
Even if the omissions were waivable or subject to clar-
ification, the Government did not abuse its discretion by
declining to waive or clarify them. This court may affirm
on any basis supported by the record. See Music Square
Church v. United States, 218 F.3d 1367, 1373 (Fed. Cir.
2000). FAR 15.306 and 52.212-1(g) each provide that the
Government “may” waive or clarify. The “word ‘may’
clearly connotes discretion,” though “discretion is not
whim.” Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct.
1923, 1931 (2016) (cleaned up).
Given this record, we cannot find that the Govern-
ment abused its discretion in declining to waive or clarify
the omissions. The Solicitation stated that the Govern-
ment intended to award a contract without establishing a
competitive range or engaging in discussions. The Solici-
Case: 19-2261 Document: 71 Page: 34 Filed: 03/04/2021
34 SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES
tation required complete pricing information in general,
including a completed Schedule B. Such complete pricing
information was crucial to the Government’s evaluation of
the proposals and its intent to award a contract without
discussions. As source selection authority Williams noted,
remedying the omissions would have required a complete-
ly revised price proposal. We cannot find that the Gov-
ernment abused its discretion in declining to seek
clarifications or applying waiver.
4. Supplementing the Administrative Record
Finally, the Claims Court did not abuse its discretion
by denying Safeguard’s email request and separate mo-
tion to supplement the administrative record.
“[T]he focal point for judicial review should be the
administrative record already in existence, not some new
record made initially in the reviewing court.” Camp v.
Pitts, 411 U.S. 138, 142 (1973). “The task of the reviewing
court is to apply the appropriate APA standard of review,
5 U.S.C. § 706, to the agency decision based on the record
the agency presents to the reviewing court.” Fla. Power &
Light Co. v. Lorion, 470 U.S. 729, 743–44 (1985). “The
purpose of limiting review to the record actually before
the agency is to guard against courts using new evidence
to ‘convert the “arbitrary and capricious” standard into
effectively de novo review.’” Axiom, 564 F.3d at 1380
(citation omitted). Supplementation “should be limited to
cases in which ‘the omission of extra-record evidence
precludes effective judicial review.’” Id. (citation omitted).
“Judicial review is ‘effective’ if it is consistent with the
APA.” AgustaWestland N. Am., Inc. v. United States, 880
F.3d 1326, 1331 (Fed. Cir. 2018). See also CHE Consult-
ing, Inc. v. United States, 552 F.3d 1351, 1356 (Fed. Cir.
2008) (declining to address whether supplementation was
proper, because “[w]ithout supplementation, the record in
this case provides a rational basis for [the Government’s]
decision”).
Case: 19-2261 Document: 71 Page: 35 Filed: 03/04/2021
SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES 35
Here, the Claims Court found that the information in
the proffered affidavits was not necessary for effective
judicial review. Not only did the court point to the unfix-
able patent defects in Safeguard’s proposal, but it found
the statements in the affidavits either inaccurate or
irrelevant.
“Evidentiary determinations by the [Claims Court],
including motions to supplement the administrative
record, are reviewed for abuse of discretion.” Axiom, 564
F.3d at 1378. “An abuse of discretion is found when: (1)
the court’s decision is clearly unreasonable, arbitrary or
fanciful; (2) the decision is based on an erroneous con-
struction of the law; (3) the Claims Court’s factual find-
ings are clearly erroneous; or (4) the record contains no
evidence upon which the district court rationally could
have based its decision.” Air Land Forwarders, Inc. v.
United States, 172 F.3d 1338, 1341 (Fed. Cir. 1999). We
find no abuse of discretion in those conclusions.
Far from abusing its discretion, the Claims Court took
pains to ensure effective judicial review. In denying
Safeguard’s email request to supplement with transcripts
of proposed depositions, the court required that the Gov-
ernment investigate whether the administrative record
was complete, particularly regarding documents relevant
to the source selection and “documents relevant to the
disqualification of other offerors in the procurement for
the same or similar reason as a result of which [Safe-
guard] was eliminated.” J.A. 144. The court also denied
Safeguard’s email supplementation request only ‘at that
time.’ Safeguard never renewed its request for deposi-
tions and, instead, sought to supplement the record with
affidavits from Curran and Prabhu, which the court
examined and considered.
The allegations in the affidavits were not borne out by
the record. Prabhu alleged that Wood was predisposed
against Prabhu and SRM, but the record reflected that
Case: 19-2261 Document: 71 Page: 36 Filed: 03/04/2021
36 SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES
Wood not only treated Safeguard fairly, but favorably
during the evaluation process. Prabhu also alleged that
Caine was predisposed against Prabhu and SRM, but,
even if true, Caine had almost no role in the procurement.
Similarly, while Curran alleged that Caine was predis-
posed against Prabhu, SRM, and Safeguard, there was no
reason to believe that, even if true, that fact impacted
Williams’s conclusions, which were consistent across all
three evaluations, even those occurring prior to any
advice from Caine.
We agree with the Claims Court that the administra-
tive record provided more than sufficient grounds to
conclude that the Government’s decision was proper
under the applicable standards and that supplementation
was unnecessary for effective judicial review.
III. CONCLUSION
We have considered the parties’ remaining arguments
and do not find them persuasive or necessary to address.
For the foregoing reasons, we affirm the final judgment of
the Claims Court.
AFFIRMED
Case: 19-2261 Document: 71 Page: 37 Filed: 03/04/2021
United States Court of Appeals
for the Federal Circuit
______________________
SAFEGUARD BASE OPERATIONS, LLC,
Plaintiff-Appellant
v.
UNITED STATES, B&O JOINT VENTURE, LLC,
Defendants-Appellees
______________________
2019-2261
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00061-MBH, Senior Judge Marian Blank
Horn.
______________________
NEWMAN, Circuit Judge, dissenting.
This bid protest by Safeguard Base Operations, LLC
(“Safeguard”) relates to a small business set-aside contract
for dormitory maintenance services at the Federal Law En-
forcement Training Center (“FLETC”) of the Department
of Homeland Security (“DHS” or “Agency”). Safeguard’s re-
lated company SRM Group, Inc. was the incumbent con-
tractor.
On the bidding for the successor six-year contract, the
Agency disqualified Safeguard because of a purported error
in its bid. Four of the seven offerors, including Safeguard,
made the same “error”: they followed a bidding instruction
in the Solicitation document instead of the instruction in a
Case: 19-2261 Document: 71 Page: 38 Filed: 03/04/2021
2 SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES
later question-and-answer (“Q&A”) document. The Agency
disqualified the offerors who followed the instruction in the
Solicitation. Safeguard states that the terms of the Solici-
tation were not properly amended as required by the Fed-
eral Acquisition Regulation (“FAR”), and that it was
unfairly disqualified.
The Court of Federal Claims held that the Agency’s dis-
qualification of Safeguard, without consideration of the
merits of its bid, was reasonable; 1 my colleagues on this
appeal agree. I respectfully dissent.
DISCUSSION
The so-called erroneous bid concerns a provision in the
“Price” section of the Solicitation. This section requires de-
tailed pricing information, including, for example, labor
rates for all positions, overtime hours and rates, exempt
and non-exempt fringe benefits, health and welfare, pen-
sions, general and administrative costs, profits, direct
costs, bonding costs, etc. However, for contract line item
numbers X007AA and X007AB the Solicitation states, in
capital letters set off by asterisks:
*****DO NOT SUBMIT PRICING FOR THESE CLINS*****
J.A. 4251. Safeguard complied with the instruction and did
not submit pricing for the designated line items, which
were for certain fixed-price not-to-exceed “plug number”
items that were not subject to variation in bid. The Solici-
tation provided no dollar amounts for these CLINS. How-
ever, in a Q&A document responding to 272 questions,
issued four months after the issuance of the Solicitation as
Amendment No. 3, Q&A 9 was as follows:
9. Q: Section B Price Schedule: Schedule B – CLIN
X007AA & X007AB: These CLINs state “The
1Safeguard Base Operations LLC v. United States,
144 Fed. Cl. 304 (2019) (“Fed. Cl. Op.”).
Case: 19-2261 Document: 71 Page: 39 Filed: 03/04/2021
SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES 3
amount listed is the Government ‘Ceiling’ and is a
‘not-to-exceed’ amount”, however there are no
amounts listed. What are the not-to-exceed
amounts for these CLINs?
A: For bidding purposes please include the follow-
ing ‘not-to-exceed’ amounts in the applicable CLIN:
[giving dollar amounts for each line item, total
$6,121,228].
J.A. 4297. The government does not dispute that the
“please include” in Q&A 9 is contrary to the “DO NOT
SUBMIT” instruction in the Solicitation.
Safeguard (and three other bidders) did not submit
pricing for the “DO NOT SUBMIT” line items. The briefs
state that the Contracting Officer spotted this discrepancy
among the bidders. From the briefs, it is not clear why ad-
justment did not occur. But it is clear that the Agency “dis-
qualified” Safeguard as a bidder because of the perceived
discrepancy. And the Agency’s promised remedial action,
after Safeguard complained to the General Accountability
Office, did not occur.
On appeal to the Court of Federal Claims, Safeguard
pointed to several Agency errors. First, Safeguard stated
that the Agency did not follow the FAR procedures for
changing the terms of the Solicitation, pointing out that the
Q&A request to include the previously omitted line item
amounts required some formality to change the pricing
terms of the Solicitation. Safeguard argued that the Q&A
document contained apparently inconsistent instructions,
and that the FAR requires that a substantive change is ei-
ther processed by FAR 15.306 (clarification), or resolicited.
See Dell Fed. Sys., L.P. v. United States, 906 F.3d 982, 998
(Fed. Cir. 2018) (“Clarifications are not to be used to cure
proposal deficiencies or material omissions, materially al-
ter the technical or cost elements of the proposal, or other-
wise revise the proposal.” (quoting JWK Int’l Corp. v.
United States, 52 Fed. Cl. 650, 661 (2002))).
Case: 19-2261 Document: 71 Page: 40 Filed: 03/04/2021
4 SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES
The Court of Federal Claims held that Safeguard’s fail-
ure to include the CLIN “plug numbers” was a material
omission from Safeguard’s bid. Fed. Cl. Op. at 346. How-
ever, no formal change in the Solicitation’s price instruc-
tion was ever made.
Second, Safeguard cited the Order of Precedence for
resolution of inconsistencies, for the Order of Precedence
was a clause of this Solicitation:
(s) Order of precedence. Any inconsistencies in
this solicitation or contract shall be resolved by giv-
ing precedence in the following order: (1) the sched-
ule of supplies/services; (2) the Assignments,
Disputes, Payments, Invoice, Other Compliances,
Compliance with Laws Unique to Government
Contracts, and Unauthorized Obligations para-
graphs of this clause; (3) the clause at 52.212-5;
(4) addenda to this solicitation or contract, includ-
ing any license agreements for computer software;
(5) solicitation provisions if this is a solicitation;
(6) other paragraphs of this clause; (7) the Stand-
ard Form 1449; (8) other documents, exhibits, and
attachments; and (9) the specification.
J.A. 1359. Safeguard argues that the Schedule of Sup-
plies/Services directing offerors not to submit pricing on
the CLINS in question has precedence over any addenda to
the solicitation. See Magnus Pac. Corp. v. United States,
133 Fed. Cl. 640, 681 (2017) (“If there are direct conflicts
between information contained in different parts of a solic-
itation, the court may rely on the contract’s ‘order of prece-
dence’ clauses to discern the reasonable interpretation of
the contract.”).
Third, Safeguard states that its summary disqualifica-
tion is illuminated by the Agency’s known bias against
Safeguard. The Court of Federal Claims denied Safe-
guard’s request to depose Agency officials. Safeguard
Case: 19-2261 Document: 71 Page: 41 Filed: 03/04/2021
SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES 5
submitted two affidavits on this aspect, but the court re-
fused to enter these affidavits into the administrative rec-
ord.
In the proffered affidavit of Safeguard’s President,
Suresh Prabhu, he averred that “Ms. Wood [the Contract-
ing Officer] called me wanting to know why SRM had cho-
sen to file another REA. She stated that I had ‘humiliated’
her by filing the Amended REA [Request for Equitable Ad-
justment] and vowed never to work with me or SRM in the
future. I asked if that meant that DHS would not renew
SRM’s Contract, and her response was, ‘Nobody who has
ever sued the Government has been awarded a Contract.’”
J.A. 1301.
The affidavit of Safeguard’s local counsel, Diana Parks
Curran, averred that DHS lawyer James Caine “stated
that ‘it is not a secret that there is bad blood between
FLETC and [SRM’s President] Suresh [Prabhu]’ and that
if he could avoid ever awarding another contract to Suresh,
he would ensure Suresh never works at FLETC ever
again.” J.A. 1226, ¶ 6 (alterations in original). 2
The Court of Federal Claims held that it was unneces-
sary to consider the charge of bias, because “[i]n sum, the
administrative record does not indicate that the Agency
breached its duty to fairly and honestly consider proposals,
even if the court were to consider the [affidavits] . . . , both
of which affidavits were not permitted by the court to be
2 Safeguard states that there were several disputes
during the prior contract term, primarily concerning
change orders. However, the record shows no criticism of
the Safeguard company’s past performance, and Safeguard
reports receipt of a “DHS Small Business Achievement
Award for its outstanding work in support of the DHS mis-
sion” in April 2018. Safeguard Br. at 5; J.A. 158, ¶ 16.
Case: 19-2261 Document: 71 Page: 42 Filed: 03/04/2021
6 SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES
included in the administrative record as not necessary for
effective judicial review.” Fed. Cl. Op. at 353.
On appeal to the Federal Circuit, Safeguard stresses
the flawed Agency procedures, and the impropriety of Safe-
guard’s summary disqualification without permitting rem-
edy of the perceived error due to inconsistent instructions
concerning the designated line items.
The panel majority finds that there is no inconsistency
between the Solicitation and Q&A 9. The majority also
finds that the Q&A 9 instruction to “please include” pricing
is an “explanation” of the “DO NOT SUBMIT PRICING”
command in the Solicitation. The majority further finds:
“The way to understand and harmonize these provisions is
to interpret ‘pricing’ as offeror-provided pricing.” Maj. Op.
at 26. The majority reasons that the bidder is required to
“provide a detailed breakdown of how it arrived at proposed
cost,” Maj. Op. at 31, although for these line items there
can be no such breakdown, for these line item “plug num-
bers” are provided by the Agency. The majority also ex-
plains its ruling by stressing “the importance of the
amounts,” Maj. Op. at 31, ignoring that the amounts at is-
sue are not subject to competitive bidding.
The government does not offer such strained theories.
The government agrees that the Q&A No. 9 instruction is
a change from the Solicitation, and states that it super-
seded the Solicitation. Accepting that this was the
Agency’s intention, the flaw is in the uncertainty and ab-
sence of clarification as the FAR requires, accompanied by
the summary disqualification of four bidders.
Of course the terms of a solicitation can be changed,
and the FAR provides procedures for doing so. Here no
such procedures were followed. See Dubinsky v. United
States, 43 Fed. Cl. 243, 267 n.56 (1999) (“[The FAR] does
not grant contracting officers carte blanche to notify offe-
rors of one rating system in the RFP [Request for
Case: 19-2261 Document: 71 Page: 43 Filed: 03/04/2021
SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES 7
Proposals] and then to apply a different system during the
evaluation of proposals.”).
“When the evaluation of proposals materially deviates
from the evaluation scheme described in the solicitation,
the agency’s failure to follow the described plan may con-
stitute evidence of arbitrary and capricious decision-mak-
ing.” L-3 Commc’ns EOTech, Inc. v. United States, 83 Fed.
Cl. 643, 654 (2008). Yet my colleagues hold that because
Safeguard followed the Solicitation instruction instead of
the Q&A 9 instruction, Safeguard was properly disquali-
fied. Precedent is contrary. See Hunt Bldg. Co. v. United
States, 61 Fed. Cl. 243, 273 (2004) (“The agency’s failure to
follow its own selection process embodied in the Solicita-
tion is . . . a prejudicial violation of a procurement proce-
dure established for the benefit of offerors.”).
It is noteworthy that four of the seven bidders made the
same purported “error.” See LaBarge Prods., Inc. v. West,
46 F.3d 1547, 1555 (Fed. Cir. 1995) (“[T]he bastion of fed-
eral procurement policy [is] that all offerors must possess
equal knowledge of the same information in order to have
a valid procurement.” (quoting Logicon, Inc. v. United
States, 22 Cl. Ct. 776, 788 (1991))).
My colleagues dispose of the question of bias by holding
that the government did not breach an “implied-in-fact con-
tract to fairly and honestly consider an offeror’s proposal in
the procurement context.” 3 Maj. Op. at 3. The covenant to
3 The panel majority bases jurisdiction on “an im-
plied-in-fact contract claim,” reciting “an implied-in-fact
contract to fairly and honestly consider an offeror’s pro-
posal in the procurement context.” Maj. Op. at 2–3. With-
out doubt, the Court of Federal Claims has jurisdiction of
this bid protest appeal. However, I do not agree that juris-
diction is a matter of an implied-in-fact contract to deal
fairly and honestly with offerors. The government’s
Case: 19-2261 Document: 71 Page: 44 Filed: 03/04/2021
8 SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES
fairly and honestly implement the bidding process under-
lies the vast framework of government procurement. Here,
however, the government disposes of the charge of bias by
stating that Safeguard was engaged in a “fishing expedi-
tion” and that consideration of the charge of bias “was not
necessary for effective judicial review of whether the
Agency fairly and honestly considered Safeguard’s pro-
posal.” Gov’t Br. 43, 47.
This casual disposition of responsible allegations dis-
serves the federal-private partnership that serves the na-
tion’s complex needs. See Pitney Bowes Gov’t Sols., Inc. v.
United States, 93 Fed. Cl. 327, 332 (2010) (“Where bias is
alleged, the administrative record frequently will not be
complete or suffice to prove or disprove the allegation. Con-
sequently, to address bias, the court will entertain extra-
record evidence and permit discovery . . . .”); Int’l Res. Re-
covery, Inc. v. United States, 61 Fed. Cl. 38, 42 (2004) (“This
Court and other fora resolving bid protests have tradition-
ally considered extra-record evidence in assessing alleged
bias or bad faith.”); Inforeliance Corp. v. United States, 118
Fed. Cl. 744, 747 (2014) (“An allegation of bad faith or bias
in particular calls for extra-record evidence to support re-
quests for supplementation or discovery.”).
The Court of Federal Claims erred in its refusal to re-
solve the allegation of bias, and my colleagues err in ration-
alizing the Agency’s departures from the rules and policy
obligation to deal fairly and honestly with offerors is a cov-
enant that underlies all government procurement. It is the
foundation on which the private sector provides goods and
services for government needs. The obligation to deal fairly
and honestly with offerors is not subject to negotiation, mu-
tuality of understanding, and consideration—the require-
ments of an implied-in-fact contract. Thus I do not share
the majority’s theory of jurisdiction.
Case: 19-2261 Document: 71 Page: 45 Filed: 03/04/2021
SAFEGUARD BASE OPERATIONS, LLC v. UNITED STATES 9
of federal procurement. I respectfully dissent from the de-
nial of this bid protest.