This morning, the Federal Circuit issued two precedential opinions in government contract cases, one nonprecedential opinion in a veterans case, and one nonprecedential opinion in a patent case. Additionally, the court issued two Rule 36 judgments. Here are the introductions to the opinions and links to the Rule 36 judgements.

Authentic Apparel Group, LLC v. United States (Precedential)

Authentic Apparel Group, LLC (“Authentic”) and Ron Reuben (“Reuben”) (collectively, “Appellants”) appeal from the decision of the United States Court of Federal Claims (“the Claims Court”) granting summary judgment in favor of the government. Authentic Apparel Grp., LLC v. United States, 146 Fed. Cl. 147 (2019) (“Summary Judgment Decision”). Appellants also appeal from the Claims Court’s decision dismissing Reuben as a co-plaintiff in the litigation. Authentic Apparel Grp., LLC v. United States, 123 Fed. Cl. 92 (2015) (“Dismissal Decision”). For the reasons stated below, we affirm.

Safeguard Base Operations, LLC v. United States (Precedential)

This is a bid protest case involving, inter alia, an implied-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 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 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”).

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 Enforcement Training Center (“FLETC”) of the Department of Homeland Security (“DHS” or “Agency”). Safeguard’s related company SRM Group, Inc. was the incumbent contractor.

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 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 Solicitation were not properly amended as required by the Federal Acquisition Regulation (“FAR”), and that it was unfairly disqualified.

The Court of Federal Claims held that the Agency’s disqualification of Safeguard, without consideration of the merits of its bid, was reasonable; my colleagues on this appeal agree. I respectfully dissent.

Lalliss v. Department of Veterans Affairs (Nonprecedential)

Steven J. Lalliss, M.D., appeals a final decision of the Merit Systems Protection Board (“board”) denying his request for corrective action and rejecting his claim that he was terminated from his position with the Department of Veterans Affairs (“VA”) in reprisal for making protected whistleblowing disclosures. See Lalliss v. Dep’t of Veterans Affairs, No. SF-1221-20-0005-W-1, 2020 MSPB LEXIS 2252 (June 2, 2020) (“Board Decision”). For the reasons discussed below, we affirm.

Olaplex, Inc. v. L’Oreal USA, Inc. (Nonprecedential)

Liqwd, Inc. (“Liqwd”) and Olaplex LLC filed suit in the United States District Court for the District of Delaware, alleging that L’Oréal USA, Inc., L’Oréal USA Products, Inc., L’Oréal USA S/D, Inc., and Redken 5th Avenue NYC, L.L.C. (together “L’Oréal”) infringed claims 1 and 10 of U.S. Patent No. 9,498,419 (the “’419 patent”) and claims 1, 4, 11–16, 19, 20, and 30 of U.S. Patent No. 9,668,954 (the “’954 patent”). The district court granted Liqwd and Olaplex LLC summary judgment of direct and indirect infringement on all claims and issued a permanent injunction. L’Oréal appealed. Following post-grant review proceedings before the Patent Trial and Appeal Board (“Board”), only claims 14–16 of the ’954 patent survive. As to these claims, we affirm the district court’s claim construction. But because there are genuine questions of material fact relating to infringement of these claims under that claim construction, we vacate and remand for trial. Additionally, we grant Liqwd and Olaplex LLC’s motion to substitute Olaplex, Inc.

Rule 36 Judgments