ECF No. 68 at 7; ECF No. 57 ¶ 13; see Distributed Sols., Inc. v. United States, 539 F.3d 1340, 1345 (Fed. Cir. 2008) (defining procurement under § 1491(b)(1) to include "all stages of the process of acquiring property or services, beginning with the process for determining a need for property or services and ending with contract completion and closeout" (emphasis omitted) (quoting 41 U.S.C. § 403(2) (2011)). The Federal Circuit determined in Resource Conservation Group, LLC v. United States, 597 F.3d 1238 (Fed. Cir. 2010), and more recently in Safeguard Base Operations, LLC v. United States, 989 F.3d 1326 (Fed. Cir. 2021), that this Court's jurisdiction over a bid protest claim in the procurement context arises "under § 1491(b)(1), and only § 1491(b)(1)." Safeguard Base Operations, 989 F.3d at 1342; see Res. Conservation Grp., 597 F.3d at 1246.
306(a)(2) indicates, "the Government is permitted-but not required" to engage in clarifications. Safeguard Base Operations, LLC v. United States, 989 F.3d 1326, 1346 (Fed. Cir. 2021). An agency will be found to have abused its discretion in not seeking clarifications only when "it should have discerned that the protestor made an error rather than a deliberate decision."
Whether a term or condition of a solicitation is a material requirement presents a question of law we review de novo. See Safeguard Base Operations, LLC v. United States, 989 F.3d 1326, 1343-44 (Fed. Cir. 2021) ("We apply de novo review to the Claims Court's interpretation of the Solicitation."). We conclude that the Solicitation's teaming agreement provisions are not material requirements.
Accordingly, our analysis must be consistent with the undisputed facts in the administrative record, drawing inferences in favor of the non-moving party. See Safeguard Base Operations, LLC v. United States , 989 F.3d 1326, 1349 (Fed. Cir. 2021) (discussing when it is appropriate to supplement administrative record and noting "[t]he focal point for judicial review should be the administrative record already in existence") (quoting Camp v. Pitts , 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) ). In lieu of an inventor's last name, Thaler wrote on the applications that "the invention [was] generated by artificial intelligence."
When read as a whole, § 1558(f) only permits the court to review the Secretary's decision. See Safeguard Base Operations, LLC v. United States, 989 F.3d 1326, 1342 (Fed. Cir. 2021) ("The meaning of statutory language, plain or not, thus depends on context.") (quoting Barela v. Shinseki, 584 F.3d 1379, 1382-83 (Fed. Cir. 2009)). Under 10 U.S.C. § 1558(f)(1)
Although SAGAM also argues that the agency breached its duty of good faith and fair dealing in this procurement, the United States Court of Appeals for the Federal Circuit ("Federal Circuit") recently held that the arbitrary and capricious standard of review for bid protests encompasses such a claim. See Safeguard Base Operations, LLC v. United States, 989 F.3d 1326, 1332 (Fed. Cir. 2021) ("[W]e . . . 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."), 1343 ("[W]e adopt the traditional standards of review applicable in other bid protest cases brought under § 1491(b)(1)[, and not the standards of review applicable in cases brought under § 1491(a), ] to bid protest[] cases which also raise implied-in-fact contract claims in the procurement context.").