Night Vision Corp. v. United States

OPINION AND ORDER

Ever since Joshua commanded the sun to stop in the sky so that tribes of Israel could have enough light to destroy the Amontes, mankind has sought ways to overcome the disadvantages the darkness of night pose in warfare.2 The operations of armies have always been degraded at night, as the darkness presents great difficulty in moving soldiers and identifying the enemy. To fight effectively at night, soldiers traditionally relied on artificial illumination, but this tactic often gave away their tactical position and informed the enemy of their maneuvers.

Today, due to technological advances, the U.S. military no longer relies on artificial illumination, let alone dreams of stopping the sun. In fact, it has almost become cliche to say that the United States military “Owns the Night.” The phrase is a boast of the military’s near perfect night time operations, which have been achieved in part by technological advances over the last fifty years. The widespread use of one technology in particular — night vision goggles (“NVGs”) — has allowed the members of our armed forces to overcome the handicap of darkness and operate effectively at night.

The NVGs we are familiar with from combat footage in Afghanistan and Iraq are electro-optical devices that intensify existing light instead of creating an artificial light source.3 NVGs first capture ambient light, *370such as light from the stars, moon or sky glow from man-made sources. This light is then amplified thousands of times by electronic means and displayed via a phosphor screen. The phosphor screen is purposefully colored green because the human eye can differentiate more shades of green than other phosphor colors. Users thus do not look “through” NVGs, but instead look at an amplified electronic image on a phosphor screen.

To maintain its tactical advantage in night fighting capability, the U.S. military constantly seeks to improve existing night vision technology. One area of focus has been in improving the field-of-view of existing NVGs. Historically, the view through NVGs was similar to looking down a tunnel. While a person’s natural field-of-view, or peripheral vision, is about 190 degrees, existing NVG technology is limited to roughly 40 degrees of field-of-view. To compensate for this complete absence of peripheral vision, the wearer of NVGs must constantly turn his head side to side. It was the military’s desire to mitigate this problem and widen the field-of-vision in NVGs that led to the parties’ dispute before this court.

The plaintiff, Night Vision Corporation (“NVC”), is a small business concern that obtained contracts with the United States Air Force for research and development of wide field-of-view NVG technology. NVC successfully developed prototype night vision goggles that expand the field-of-view to 100 degrees without compromising image quality— a technology NVC calls “Panoramic Night Vision Goggles” (“PNVG”) — under the Small Business Innovation Research (“SBIR”) program. The SBIR program requires certain federal agencies to reserve a portion of their research and development budgets for small business concerns. See 15 U.S.C. § 638(e)(4) (1996). Generally speaking, fully successful contractors in the SBIR program proceed in three distinct phases. In Phase I, a small business concern is awarded limited funding to determine “the scientific and technical merit and feasibility of ideas that appear to have commercial potential.” Id. § 638(e)(4)(A). Following the successful completion of Phase I, a Phase II contract may be awarded, which permits further development of the original idea. Id. § 638(e)(4)(B). Phase III envisions a commercial application of the research and development from the prior phases funded by either “non-Federal sources of capital” or “non-SBIR Federal funding.” Id. § 638(e)(4)(C).

NVC successfully completed both a Phase I and a Phase II contracts under the SBIR program. Nevertheless, the Air Force eventually decided not to award a SBIR Phase III contract. Instead, the Air Force conducted a competitive procurement, ultimately awarding a contract for additional development of the wide field-of-view night vision goggle concept to Insight Technology, Inc. (“Insight”), which had served as NVC’s subcontractor under its Phase II contract.

This competitive award to Insight bitterly disappointed NVC and its principals. NVC felt that, based upon its successful completion of the SBIR Phase I and II contracts, it was entitled to receive a Phase III contract. Indeed, NVC was convinced that Air Force officials had promised as much while NVC was developing the PNVG prototype. The award to Insight was particularly irksome because NVC and Insight had a troubled relationship as prime and sub-contractors under the Phase II contract.

NVC’s conflicts and competition with Insight — and particularly the actions of Air Force employees with respect to these conflicts and competition — form the factual basis of plaintiff’s claims. Plaintiff seeks relief on five separate counts. In count I, plaintiff contends that the Air Force breached its SBIR contracts with NVC by disclosing proprietary technical data to Insight in violation of certain regulations. In count II, plaintiff alleges that the Air Force breached a statutory provision allegedly incorporated by law into NVC’s SBIR contracts when the Air Force decided not to award NVC an SBIR Phase III contract. In count III, plaintiff claims that the Air Force breached an implied contract with NVC when it decided not to award NVC an SBIR Phase III contract. *371In count IV, plaintiff claims that the Air Force violated a duty of good faith and fair dealing that it owed to NVC “in all facets of the procurement process.” Finally, count V consists of a bid protest challenging the award of contract no. F33615-00-C-6000 to Insight instead of NVC.

The parties have filed numerous motions, all of which are opposed, regarding each of plaintiffs claims. As will be explained more fully below, the court grants summary judgment to defendant on count I, since plaintiff failed to present evidence that it affixed data rights legends to the goggles, resulting in a waiver of the protection from disclosure plaintiff seeks to invoke here. The court dismisses count II under RCFC 12(b)(6) because the statute plaintiff seeks to incorporate into the contract, 15 U.S.C. § 638(j)(2), imposes no obligation or duty on either party to the contract. The court grants summary judgment to defendant on count III because plaintiff has failed to produce evidence that a government representative with contracting authority made a contract with plaintiff. The court dismisses count IV under RCFC 12(b)(6) because a key element of this claim must involve a violation of a particular contractual term and the plaintiffs claim assumes there was no contractual obligation to award the Phase III contract. Finally, the court grants defendant’s motion for judgment on the administrative record on count V because plaintiff has failed to prove the defendant’s evaluation of the bids were arbitrary, capricious, or an abuse an discretion, a threshold issue in a bid protest.

I. Factual Background4

NVC, whose founder and president is Danny Filiopovieh, designs “optical image intensification systems” for night vision goggles, which “enable the wearer to see in low-light and no light conditions.” D. Resp. PFUF ¶¶ 1-2, 4; PI. Resp. PFUF ¶ 7; Pl.App. Ex. A, ¶2, 4. On May 12, 1995, the Air Force awarded NVC a SBIR Phase I contract under which NVC developed a single prototype of its PNVG design.5 PI. Resp. PFUF ¶ 1; D. Resp. PFUF 1121.

On July 12, 1996, the Air Force awarded NVC a SBIR Phase II contract under which NVC arranged for the production of twelve developmental night vision goggle prototypes with the help of a subcontractor.6 PI. Resp. PFUF ¶ 3. Seven of these prototypes were in a configuration called PNVG I7 and five were in a configuration called PNVG II.8 PI. Resp. PFUF ¶ 5. Both configurations expanded the field-of-vision provided by existing night vision goggle technologies while maintaining similar image resolutions.9 PI. App. Ex. 13 at 365.

*372The Air Force Research Laboratory (“AFRL”) at Wright-Patterson Air Force Base administered NVC’s SBIR contracts. PI. Resp. PFUF at ¶2. NVC worked with several AFRL employees, including: Jeffrey Craig, an engineer and night vision technology specialist; Randy Brown, an AFRL program manager; Dr. H. Lee Task, the senior scientist advisor for NVC’s SBIR contracts; and two contracting officers, Judith Demos, who served as the contracting officer throughout most of NVC’s performance of its SBIR contracts, and Mary Jones, who succeeded Ms. Demos late in the process. PL Resp. PFUF at ¶¶2, 4; D. Resp. PFUF at ¶ 37.

Sometime after July 1996, Insight agreed to serve as NVC’s primary subcontractor under the SBIR Phase II contract. D. Resp. PFUF ¶ 23-25. Insight was founded in 1987 by a former Army employee named Kenneth Solinsky, who currently serves as the company’s president. D. Resp. PFUF ¶25; Pl. App. Ex. L at 5. Among other things, this subcontract (hereinafter “Phase II subcontract”) required Insight to “assist in the design and manufacture of the plastic housings and bridge assembly for the PNVG I units,” convert NVC’s design “into engineering drawings suitable for manufacture,” and “fabricate and assemble the goggle assembly.” D. Resp. PFUF ¶23; PLApp. Ex. A ¶27. Unfortunately, the record reveals that NVC and Insight did not work well together, and the two companies maintained a tenuous relationship.

Long before NVC completed performance of its Phase II contract, the Air Force considered the possibility of awarding NVC an SBIR Phase III contract. For instance, in early 1997, Mr. Filipovich stated that Air Force personnel instructed him to prepare NVC for performance of an SBIR Phase III contract. In particular, Air Force personnel indicated that because NVC lacked any production capability it needed to either “develop the production capability that would be required for production in a SBIR Phase III, or subcontract with a company capable of producing the PNVG system.” PLApp. Ex. A ¶ 20.

It was the potential work under a future SBIR Phase III contract that was grist for much of the dispute between Insight and NVC. In April 1998, Mr. Solinsky demanded that Insight “be granted exclusive manufacturing rights” for any SBIR Phase III contract, and threatened to stop work under the Phase II subcontract (thus threatening NVC’s ability to perform) until Insight received this guarantee. D. Resp. PFUF ¶ 41.

Although it initially resisted, NVC sent a letter to Insight on May 8, 1998 promising that “during ... Phase III, [Insight] will be the exclusive manufacturer for both the PNVG I and PNVG II.” PLApp. Ex. 64; PLApp. Ex. D, ¶ 3. After obtaining this promise, Mr. Solinsky sought a further guarantee that Insight would have a role in production beyond Phase III. D. Resp. PFUF ¶49. Contemporaneous with this demand, Insight stopped work and also withheld from NVC a set of drawings that it was required to deliver to NVC under the Phase II subcontract. PLApp. Ex. H at 208-10, 213-14; PLApp. Ex. J at 174-75, 213-16.

By July 1998, the disputes between NVC and Insight threatened completion of the Phase II contract. On July 8, 1998, in an attempt to resolve the conflicts between NVC and Insight, Air Force personnel met with representatives of the two companies. PLApp. Ex. H at 210-14. At this meeting, Mr. Solinsky renewed both his demand for a guarantee that Insight would be NVC’s exclusive manufacturer beyond any SBIR Phase III contract and his threat that until it received this guarantee, Insight would not perform under the Phase II subcontract. D. Resp. PFUF ¶ 56; PLApp. Ex. J at 226-27. The parties at the meeting discussed and drafted a teaming agreement to be executed by NVC and Insight. D. Resp. PFUF ¶¶ 57-8, 63-4; PLApp. Ex. J at 229-45. The next day, NVC and Insight executed this agreement, which (among other things) guaranteed that if the Phase II contract led to a Phase III contract, Insight would be NVC’s manufacturer; the teaming agreement also protected Insight’s proprietary data from *373disclosure to third parties. Pl.App. Ex. 91; D. Resp. PFUF ¶ 64.

Throughout the rest of 1998, the Air Force and NVC continued to discuss the possibility of work under an SBIR Phase III contract. For instance, on December 15-16, 1998, Air Force personnel, met with NVC to discuss “acquisition strategy” related to the PNVG program. PL Reply Pl. Mot. Summ. J. Ex. A, ¶ 26. At that time, Air Force employees discussed with NVC how the development and production of NVC’s night vision goggle technology would proceed under an SBIR Phase III contract. Pl. Reply PL Mot. Summ. J. Ex. A, ¶¶ 24-27.

It appears that by the Spring of 1999, however, the Air Force was considering alternatives to awarding NVC an SBIR Phase III contract. In April 1999, Mr. Brown apparently asked Insight for quotes for the manufacture of 500 PNVG I and 1,000 PNVG II units. PLApp. Ex. 153. In an email dated April 19, 1999, Mr. Solinsky responded with the requested quotes; an email exchange elaborating on these quotes between Solinsky and Mr. Brown followed. Id.

As the completion of the SBIR Phase II approached, all of the parties’ focus turned more to determining how the development of the PNVG would proceed. On June 24,1999, Mr. Filipovich took part in a conference call with Air Force employees, including Mr. Brown, Mr. Craig, Dr. Task, and Mr. Kocian, regarding the possibility of an SBIR Phase III contract. PLApp. Ex. A ¶ 63. According to Mr. Filipovich, Mr. Brown told him that “the Air Force did not want to offer Phase III to NVC, but, instead, wanted NVC to sell its technology to Insight and become a consultant to Insight.” Id. Mr. Filipovich also stated that Mr. Kocian told him: “[y]our only option is to sell [your technology] to Insight. Otherwise, you will never get another contract from the Air Force.” Id. at ¶ 65. Further, Mr. Filipovich claims that Mr. Brown and Dr. Task confirmed that “NVC has no option but to sell NVC or its technology to Insight.” Id. at ¶ 66. Mr. Brown’s notes related to this call indicate that the Air Force “probably would not pursue” awarding the SBIR Phase III contract to NVC and that awarding the SBIR Phase III contract to Insight as the prime contractor with NVC as a subcontractor was the “preferred approach.” PLApp. Ex. 745.

Mr. Filipovich sent a letter the next day to Mr. Brown and Mr. Craig, summarizing his understanding of what he had been told in the previous day’s phone call. PLApp. Ex. 191. Mr. Filipovich wrote he had been told the Air Force would not offer NVC a SBIR Phase III contract. Id. Moreover, Mr. Filipovich wrote, he was told that NVC should not submit — and the Air Force would not accept — a SBIR Phase III contract proposal from NVC. Id. Mr. Filipovich also wrote that he had been encouraged to sell the PNVG program and the related technology to Insight, who would then serve as the prime contractor. Id.

On June 28, 1999, the Air Force officially announced that it was considering a competitive procurement instead of issuing a SBIR Phase III contract to NVC. PLApp. Ex. 192. On that date the Air Force published a notice entitled “Potential Sources Sought,” seeking possible developers of a “night vision goggle” offering “a wider field of view (at least 100 degree horizontal by 40 vertical...) and high resolution.” Id. This document publicized that the Air Force would seek to develop two versions of the goggles. Id. The related descriptions in the document seem to correspond with NVC’s PNVG I and PNVG II configurations. Id.

At this time, Insight was preparing to compete directly against NVC for a contract to develop the PNVG system. On July 1, 1999, Insight executed an agreement with ITT Industries, Inc. (“ITT”) to work together towards obtaining a PNVG competitive procurement contract. PLApp. Ex. 198. ITT was another indispensable subcontractor to NVC under its SBIR contracts, supplying the “image intensifier tubes” for the PNVG system. PLApp. Ex. A ¶ 32.

On July 7, 1999, representatives from Insight and ITT met with Air Force personnel to present a sales pitch they called “PNVG: Road to Production.” D. Resp. PFUF ¶ 96; PLApp. Ex. 203. Among other things, this presentation addressed potential legal issues related to the Air Force’s decision to proceed *374with a competitive procurement instead of awarding NVC a SBIR Phase III contract. PLApp. Ex. 203 at DE000967-73. Specifically, Insight and ITT claimed that pursuant to 48 C.F.R. § 252.227-7018 Insight and ITT enjoyed some data rights related to the PNVG program as subcontractors to NVC. Id. at DE000970-72. Still, Insight and ITT’s presentation ultimately recommended that the “Government should acquire unlimited data rights and provide [those rights] to all competitors.” Id. at DE000972.

On July 13, 1999, the Air Force sent a letter to NVC directing it to incorporate into its subcontracts 48 C.F.R. § 52.227-11, a provision regarding data rights protections afforded to subcontractors of federal government contracts. PLApp. Ex. 204. On July 14,1999, the Air Force sent another letter to NVC announcing its intention to pursue development of the PNVG through a competitive procurement. PLApp. Ex. 205. This letter also stated that the Air Force would like to obtain “government purpose rights” to NVC’s proprietary data. Id.

Later that month, it appears that Insight and ITT began actual work on a night vision goggle system that would compete with NVC’s PNVG. PLApp. Ex. 218, 219. Based on this preliminary work on or about July 22, 1999, personnel from the Army Night Vision Laboratory requested a cost estimate for the development of up to 20,000 PNVG. PLApp. Ex. 206.

On July 30,1999, Insight delivered to NVC the drawings it was required to generate under the SBIR Phase II subcontract. D. Resp. PFUF ¶ 111. The same day, NVC delivered the final data package for its SBIR Phase II contract to the Air Force which included both technical information (such as drawing and schematics) and prototypes of the goggles. PLApp. Ex. A, ¶ 70. NVC claims that it marked all technical data that it delivered to the Air Force with data rights legends indicating that the data was proprietary. D. Resp. PFUF ¶ 111; PLApp. Ex. 236. Nonetheless, it is uncontroverted that NVC did not affix such legends to the actual goggles that it delivered to the Air Force along with the technical documents (a significant factor discussed at length below).

As a contract monitor under NVC’s SBIR Phase II contract, Mr. Craig received the goggles that NVC delivered to the Air Force under the contract. D.App. 153. Mr. Craig stated that none of these goggles were marked with a restrictive data rights legend, nor were they accompanied by a transmittal document or storage container bearing any such restrictive data rights legend. Id. Mr. Craig stated his belief that all the goggles were marked “patent pending.” Id.

With the delivery of the final data package, NVC’s SBIR Phase II performance was complete. PLApp. Ex. A ¶ 70. According to plaintiff, NVC “fully and satisfactorily performed all of its obligations” under both its SBIR Phase I and Phase II contracts. PL Reply PL Mot. Summ. J. Ex. A ¶¶ 13-14. Also, the results that NVC obtained under both of its SBIR contracts “met the Air Force’s expectations.” Id. at ¶¶ 15,17.

Despite the successful completion of the SBIR Phase II contract, the Air Force remained reluctant to award NVC a Phase III contract. This was apparent from a meeting of Air Force personnel on August 23, 1999. Materials from a presentation given in that meeting stated that the Air Force “did not see any value in NVC conducting a Phase III.” PLApp. Ex. 264. This presentation was concluded with the following text: “Recommendation: Acquire Government Purpose Data Rights to PNVG Phase 2 data. Conduct full and open competition for PNVG follow-on contract. Provide PNVG data as a baseline for design.” Id. Plaintiff has produced typed notes by an unidentified author, apparently related to this meeting, that contain the words: “Laboratory does not want to award to NVC.” PLApp. Ex. 270. Concerning a NVC SBIR Phase III proposal, the notes indicate that the Air Force would “allow NVC to submit,” and “if acceptable, award to NVC, if not acceptable, do one of two things, pursue purchase of data rights from NVC or issue a [Program Research and Development Announcement] for the technology.” Id.

On August 27, 1999, Air Force and NVC representatives met at Wrighb-Patterson Air Force Base. At that meeting, Ms. Jones stat*375ed that the Air Force was considering either “issuing a Phase III or pursuing full and open competition.” D. Resp. PFUF ¶ 128; PLApp. Ex. 275, NV11770. Mr. Filipovich asked if the Air Force would consider evaluating a SBIR Phase III proposal from NVC. PLApp. Ex. 275 at NV11770. According to a file memorandum regarding the meeting, Ms. Jones replied that “should [NVC] choose to submit a Phase III proposal the government would evaluate it.” Id. at NV11774. Ms. Jones also explained that the Air Force would not request such a proposal or guarantee an award. Id. When Mr. Filipovich replied that NVC would not want to submit a proposal if a SBIR Phase III contract was not a valid option, Ms. Jones stated that “the government cannot guarantee that we will award a Phase III contract just because a Phase III proposal is submitted.” Id. Similarly, according to Dr. Task, Mr. Filipovich asked if “he would be guaranteed of getting the contract” if he submitted a Phase III proposal. D.App. 126. Dr. Task responded that “there is no guarantee to getting a [Phase III] until after we see the proposal and can evaluate [it].” Id. It is important to note that NVC did not submit a proposal for a SBIR Phase III contract. D.App. Ill; Pl. Resp. PFUF ¶ 9.

Notes from that meeting, apparently written by Ms. Jones, under the heading “NVC’s purpose,” state: “‘Sob Story’ company is going under and it is the Government’s fault because NVC (I think) has been promised a Phase III somewhere along the way. Now the Government is telling NVC we are not sure if that is in the strategy.” Regarding another Air Force employee’s reaction to the meeting, Ms. Jones wrote: “She got the same feeling I did from the meeting and that is she thinks we have promised NVC a Phase III proposal somewhere along the way.” Pl. App. Ex. 277.

During this time the Air Force remained to be in communication with Insight about work on the PNVG system. Several times in August and September 1999, the Air Force mailed to Insight PNVG prototypes that NVC had delivered under the SBIR Phase II contract. D. Resp. PFUF ¶ 114r-15; Pl. Reply Pl. Mot. Summ. J. Ex. A, ¶ 3-6. Insight apparently retained some of these PNVG units for several days or weeks while shipping other units back to the Air Force only a few days after receiving them.10 D. Resp. PFUF ¶ 114-15; Pl. Reply Pl. Mot. Summ. J. Ex. A, ¶ 3-6. A photograph of a disassembled PNVG II unit was among the materials Insight produced in discovery in its litigation with NVC in the Eastern District of Virginia. D. Resp. PFUF ¶132; PLApp. Ex. 702. Still, Mr. Solinsky denied that Insight disassembled the PNVG prototypes that the Air Force sent to him. PLApp. Ex. L at 268. However, Mr. Solinsky acknowledged that Insight took measurements of the PNVG prototypes.11 Id.

Additionally, on September 10, 1999, Mr. Craig reported results of flight tests conducted with the NVC’s prototype PNVG to Insight. D. Resp. PFUF ¶ 133. According to NVC, it was not informed of this conversation. Id. On September 17, 1999, an Insight employee set up a meeting with Mr. Craig to discuss technical issues. Id. at ¶ 138.

On September 29,1999, Mr. Brown sent an e-mail to other Air Force personnel stating that the Air Force had requested NVC to declare its “intentions on submitting a Phase III proposal.” D. Resp. PFUF ¶ 140; PL App. Ex. 316. This e-mail also stated that the Air Force was “proceeding very cautiously” and was “not willing to commit to pursuing full and open competition at this time.” D. Resp. PFUF ¶ 140; PLApp. Ex. 316.

On October 7,1999, Air Force, Insight, and NVC representatives met to discuss the uno*376bligated plus-up funds and the possibility of working together under a SBIR Phase III contract. D. Resp. PFUF ¶ 141; PLApp. Ex. 322. Specifically, Mr. Brown and Mr. Craig acknowledged that the Air Force needed to use the unobligated funds, or else it would lose them. D. Resp. PFUF ¶ 143.

On October 18, 1999, Mr. Filipovich wrote a letter to the Air Force arguing that NVC should be awarded a sole source, SBIR Phase III contract. PL Resp. PFUF ¶ 7. Mr. Filipovich did not claim in that letter that the Air Force had previously agreed to award it a SBIR Phase III contract. Id.

On October 21, 1999, Mr. Solinsky wrote a letter to Ms. Jones requesting a meeting with the Air Force to discuss the PNVG program and make a presentation regarding work Insight and ITT had done since June 29,1999. D. Resp. PFUF ¶ 146.

By November 1999, the Air Force appears to have been leaning toward its ultimate decision against awarding NVC a Phase III contract. On November 3, 1999, Mr. Craig and Mr. Brown prepared a document entitled “Integrated Panoramic Night Vision Goggle: Information Brief.” D. Resp. PFUF ¶ 147; PLApp. Ex. 348. The Information Brief listed two options for future contracts: (a) full and open competition in which NVC and Insight would compete; and (b) a SBIR Phase III contract with NVC. PLApp. Ex. 348, AF200962. This document also gave several factors that weighed against pursuing a SBIR Phase III contract with NVC:

• “[NVC] is a very small company; limited capability to manage next phase”

• “Limited innovative solutions”

• “No incentive to control costs”

• “Limited data rights”

• “Phase II subcontractors on NVC proposed team are unwilling to participate”

• “Bottom Line: there is no longer a team for a SBIR Phase III award.”

Id. AF200963. The Information Briefs recommendation was that the Air Force pursue full and open competition. Id.

The Air Force’s inclination against awarding NVC a Phase III contract continued throughout November. The Air Force Chief of Staff noted on or before November 9, 1999, that the Air Force would compete the PNVG Phase III program. PLApp. Ex. 354. Likewise, on November 17, 1999, the Secretary of the Air Force in a letter indicated that the Air Force “plan[ned] to hold a full and open competition to finish the PNVG development.” D. Resp. PFUF ¶ 149.

The Air Force made its final decision against awarding NVC a SBIR Phase III contract in December 1999. An Air Force “Acquisition Strategy Panel” met on December 1,1999 to discuss the Air Force’s plan for future development of the PNVG program. PLApp. Ex. 364, 365, 366. The Acquisition Strategy Panel reviewed factors for and against pursuing either full and open competition or a SBIR Phase III contract with NVC. PLApp. Ex. 365 at AF103267-68.

The panel specifically cited the reasons against pursuing a SBIR Phase III with NVC that were listed in the November 3, 1999, Information Brief. Id. at AF103268. The panel also noted that “[NVC] had difficulty in managing the Phase II contract which is less of a management challenge than a new Phase III contract would be.” Id. The panel ultimately recommended that the Air Force procure further PNVG development through full and open competition using the Program Research & Development Announcement (“PRDA”) procedure. Id. at AF103266-68, AF103277.

On December 10, 1999, Donald L. Utendorf, then Chief of the Research and Development Contracting Office for the Technology Directorates at Wright-Patterson Air Force Base, decided that the Air Force would issue the PRDA instead of awarding a SBIR Phase III contract to NVC. D.App. 159-61. In reaching this conclusion, Mr. Utendorf adopted the recommendation of Maris Vikmanis, an AFRL technical management leader, and the AFRL Acquisition Strategy Panel. D.App. 160.

On December 16, 1999, the AFRL, in conjunction with the United States Army Night Vision and Electronic Sensors Directorate, posted Program Research and Development Announcement (“PRDA”) No. 00-01-HE. Pl. CSF ¶ 1; D. Resp. PFUF ¶ 150. The purpose of the PRDA was “to award a nego*377tiated, 24-month Advanced Technology Demonstration (‘ATD’) contract” for what the Air Force called Integrated Panoramic Night Vision Goggles (“IPNVG”). PL CSF ¶ 1.

On January 7, 2000, Mr. Filipovich sent a letter to Ms. Jones, expressing concern about protecting NVC’s SBIR data rights in connection with the PRDA. Id. at ¶ 6. Mr. Filipovich’s letter stated, among other things, that “[o]nly those designs that are developed independently and without reliance on NVC’s proprietary design concepts should be accepted by the Government.” Id.

In January 2000, Litton Systems, Inc. (“Litton”) requested that the Air Force permit it to borrow a PNVG unit for two weeks — or at least examine a PNVG unit at an Air Force facility. Id. at ¶ 7. In a letter dated January 28, 2000, Ms. Jones informed Litton and other potential bidders that they could examine one PNVG unit at Wright-Patterson Air Force Base for up to three hours. Id. During this examination, Ms. Jones informed the potential bidders, “[dis-assembly of the PNVG will not be allowed.” Id. Moreover, Ms. Jones emphasized that the “Air Force is not looking for a copy of the PNVG as designed under the previous [SBIR] eontracts[,] which is why we have elected to issue a [PRDA, which] encourages industry to propose new and creative solutions.” Id.

On January 31, 2000, Mr. Filipovich sent an email to Ms. Jones stating that allowing other potential bidders to inspect a PNVG was “a violation of NVC’s SBIR DATA RIGHTS.” Id. at ¶ 8. James David Box, an Air Force contracting officer, responded to this email in a letter dated February 2, 2000. Id. at ¶ 9. Mr. Box stated: “After much research and consideration, I am convinced that allowing limited inspection of the PNVG goggle does not violate NVC’s SBIR data rights nor patent rights.” Id. Mr. Box also added: “Please be assured that the Air Force’s goal is to strive for new and creative solutions to the PNVG, and not merely to reproduce the goggles made by NVC under the SBIR program. This is why we have limited the inspection to a 3 hour period ... and prohibited the disassembly of the goggle.” Id.

Three companies submitted bids in response to the PRDA: NVC, Insight, and Litton. Id. at ¶ 10. On March 22, 2000, following technical evaluations of the proposals, the evaluation team ranked Insight first, based upon technical merit, followed by Litton. NVC’s proposal was ranked as “Category III” and ineligible for award, because it did not meet agency needs. Id.

The technical evaluation team’s summary of comments regarding NVC’s bid concluded that “[t]he majority of the program team has not been identified and there is no supporting documentation from any of the subcontractors, showing cost or commitment to perform. Therefore, NVC’s proposal does not meet agency needs.” Id at ¶ 11.

The technical evaluators’ overall summary with respect to Insight was much more favorable: “Insight addresses all of the important aspects of their approach for developing a well conceived Integrated PNVG/ANVG. They provided detailed information of the design approach they plan to pursue and this made it easier to address the amount of risk associated with their effort.” Id. ¶ 12.

The Air Force entered into negotiations with Insight on April 3, 2000 and awarded Insight contract number F33615-00-C-6000 on April 7,2000. Pl. CSF ¶ 13.

II. Jurisdiction and Standard of Review

This court has jurisdiction over plaintiff’s express contract, implied contract, and bid protest claims under the Tucker Act, which confers jurisdiction on this court for claims against the United States founded on “an express or implied contract” and for “action[s] by an interested party objecting to ... the award of a contract” by a federal agency. 28 U.S.C. § 1491(a)(1), (b)(1); United States v. Testan, 424 U.S. 392, 397, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976).

The standards this court must follow in deciding summary judgment motions and motions to dismiss for failure of the pleading to state a claim are quite clear. As to grant summary judgment, this court may only grant summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. RCFC 56; Anderson v. Lib*378erty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In its summary judgment inquiry, the court must carefully scrutinize the proffered facts to determine exactly what is at issue, but it is important to also note that this does not mean that all contradictions of fact are fatal. Anderson, 477 U.S. at 247, 106 S.Ct. 2505. In this inquiry, “factual disputes that are irrelevant or unnecessary will not be counted.” Id. Summary judgment can still be, granted, where the disagreement is tangential to the case; that is, the factual dispute is not “material” because it would not make a difference in the result of the case under the governing law. Id.

It is now well-accepted that a moving party is not required to produce evidence showing an absence of genuine material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A moving party need only point to an absence of evidence for a required element of the nonmoving party’s case. Id. Moving parties may succeed, therefore, whether or not they rely “on the pleadings, depositions, answers to interrogatories and admissions on file.” Id. at 324, 106 S.Ct. 2548. Even so, when a moving party properly identifies an absence of evidence in the nonmoving party’s case, the burden then shifts to the nonmoving party to make a showing sufficient to establish that element or create an issue of material fact. Id. at 322, 106 S.Ct. 2548. It is critical to note that the nonmoving party may not rely on conclusory statements or assertions. Id. at 324, 106 S.Ct. 2548. Once the burden shifts, the nonmoving party must go beyond its own pleadings and identify specific facts in the record that show that there is a genuine issue as to material fact for trial. Id. If it does not, summary judgment must be rendered in favor of the moving party. Id.

On cross-motions for summary judgment (as the parties have here filed regarding plaintiffs data rights claim), the standard is somewhat different, bowing to common sense. For instance, the court may not assume there are no genuine issues as to material fact. Prineville Sawmill Co. v. United States, 859 F.2d 905, 911 (Fed.Cir.1988) (citing Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391(Fed.Cir.1987)). Yet, the court must still evaluate each party’s motion on its own merits, remembering to make all reasonable inferences against the party whose motion is being considered. De-Marini Sports, Inc. v. Worth, Inc., 239 F.3d 1314, 1322 (Fed.Cir.2001).

As for the standard the court must follow in deciding motions to dismiss for failure of the pleading to state a claim pursuant to RCFC 12(b)(6), and unlike summary judgment, only a “facial” challenge to the legal sufficiency of the complaint is examined. In other words, granting this motion must solely be “based on the facts alleged in the complaint” when “the law countenances no remedy.” Client Network Servs., Inc. v. United States, 64 Fed.Cl. 784, 789 (2005); see, e.g., Perez v. United States, 156 F.3d 1366, 1370 (Fed.Cir.1998). In its 12(b)(6) inquiry, the court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the plaintiff. Id. Additionally, Rule 12(b)(6) requires the court to treat the motion as one for summary judgment if matters outside the plaintiffs pleading are presented.12 See Advanced Cardiovascular Sys., Inc. v. Scimed Life Sys., Inc., 988 F.2d 1157, 1164 (Fed.Cir.1993). Thus, the granting of dismissal is only proper when plaintiff can “prove no set of facts” that would entitle it to legal relief. Southfork Sys. v. United States, 141 F.3d 1124, 1131 (Fed.Cir.1998).

III. Discussion

Risking a bit of redundancy for the ease of reading, the court restates the grounds of plaintiffs complaint. It consists of five claims for relief, each to be addressed in turn. Count I alleges that defendant breached the SBIR contracts with plaintiff by dis*379closing proprietary technical data to Insight. Count II alleges that defendant breached a provision allegedly incorporated by law into the SBIR contracts with plaintiff, which required defendant to award plaintiff a SBIR Phase III contract. Count III alleges defendant breached an oral contract with plaintiff by not awarding plaintiff a SBIR Phase III contract. Count IV alleges defendant violated a duty of good faith and fair dealing owed to plaintiff throughout the procurement process. Finally, count V consists of a bid protest challenging the award of contract no. F33615-00-C-6000 to Insight instead of NVC.

A. Did Defendant Breach Plaintiffs SBIR Data Rights?

The parties have filed cross-motions for summary judgment on count I, in which plaintiff claims that defendant violated a prohibition against disclosing plaintiffs proprietary data when defendant sent PNVG prototypes to Insight.13 PL Mot. Summ. J. 30-33; D. Mot. Summ. J. 6-11. Plaintiff argues that PNVG prototype units themselves constitute proprietary “technical data”14 and are entitled to protection from government disclosure under 48 C.F.R. § 252.227-7018 (2005). Pl. Mot. Summ. J. 30-33. Defendant argues that plaintiff waived any legal protection from disclosure of data rights since the plaintiff delivered the goggles to defendant without protective markings that are required by the regulation as a condition to the protection it offers. D. Mot. Summ. J. 6-11. Defendant further argues that the legal protection plaintiff seeks does not apply to the actual goggle prototypes, since tangible products delivered under a SBIR contract are not “technical data.” Id. The court essentially concurs with defendant.

Since the material facts are not disputed by the parties, the issues this court must determine for summary judgment are pure questions of law. Terlep v. Brinkmann Corp.,