Scott v. United States
134 Fed. Cl. 755
| Fed. Cl. | 2017Background
- Brian X. Scott, an Air Force employee at Incirlik AB, Turkey, submitted an unsolicited, restrictively marked proposal (Jan 11, 2017) addressing counter-drone defenses; he previously submitted a version in Jan 2016 that was rejected.
- Air Force contracting staff rejected the 2017 submission, stating it addressed a previously published solicitation requirement and that as a government employee Scott was generally ineligible for award absent a §3.602 exception.
- Scott returned from leave and observed allegedly implemented measures he contends mirror parts of his proposal; he sent a cease-and-desist and then sued (filed March 30, 2017).
- Claims: (1) implied-in-fact contract under FAR Subpart 15.6 / §15.608 requiring evaluation and prohibiting use/disclosure of restrictively marked proposal material; (2) breach by improper evaluation and by use/disclosure; (3) Fifth Amendment takings; requested injunctive relief, specific performance, and monetary damages.
- Government moved to dismiss for lack of jurisdiction and failure to state a claim; court considered jurisdiction under the Tucker Act and merits under RCFC 12(b)(6).
- Court held it had jurisdiction to hear Scott’s contract claim (non-frivolous implied-in-fact contract theory based on FAR Subpart 15.6), but dismissed all substantive claims for failure to state a plausible breach or takings claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an implied-in-fact contract arose from FAR Subpart 15.6/§15.608 upon submission of an unsolicited, restrictively marked proposal | Scott: submission in compliance accepted gov't offer to evaluate and protect restrictively marked material → implied-in-fact contract | Gov't: submission does not create contract because proposal addressed a published requirement and no confidentiality promise/award to gov't employee | Court: Jurisdiction exists — non-frivolous implied-in-fact contract theory survives jurisdictional challenge (Airborne Data controlling) |
| Whether the Air Force breached contractual obligations by failing to follow FAR evaluation procedures (i.e., improperly rejecting the proposal) | Scott: FAR required comprehensive evaluation under Subpart 15.6; rejection was improper | Gov't: initial review properly concluded proposal addressed a previously published solicitation requirement; proposal therefore not eligible for further review; §3.601 eligibility issue | Court: Dismissed — factual allegations do not plausibly show improper evaluation; rejection for addressing a published requirement was reasonable |
| Whether the government used or disclosed restrictively marked proposal information in violation of §15.608 | Scott: observed implementation of two key prongs (Intel Fusion Center; off-base patrols) shortly after submission → inference of use/disclosure | Gov't: denies use/disclosure; declarations and lack of corroborating facts show independent origin; implemented measures predate or derive from other sources | Court: Dismissed — Scott’s allegations are speculative and implausible; no non-speculative factual link to misappropriation |
| Whether Scott stated a Fifth Amendment takings claim | Scott: intellectual property in proposal taken for public use without compensation | Gov't: actions alleged amount to unlawful misappropriation, not a lawful government appropriation supporting a takings claim | Court: Dismissed — takings claim requires otherwise lawful government action; here plaintiff alleges theft/misappropriation, not valid governmental appropriation |
Key Cases Cited
- Airborne Data, Inc. v. United States, 702 F.2d 1350 (Fed. Cir. 1983) (regulation-based offer to evaluate unsolicited proposals can give rise to implied-in-fact contract)
- Engage Learning, Inc. v. Salazar, 660 F.3d 1346 (Fed. Cir. 2011) (Tucker Act jurisdiction requires only a non-frivolous allegation of a contract)
- Trauma Serv. Group v. United States, 104 F.3d 1321 (Fed. Cir. 1997) (elements for implied and express contracts are identical: mutual intent, offer, acceptance, consideration)
- City of Cincinnati v. United States, 153 F.3d 1375 (Fed. Cir. 1998) (non-frivolous assertion of implied contract suffices for jurisdiction)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (complaint must plead sufficient factual matter to state a plausible claim)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (allegations must raise claim above speculative level)