CBCA 6543

MOTION FOR PARTIAL SUMMARY JUDGMENT DENIED: April 9, 2020 CBCA 6543 CSI AVIATION, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Jason N. Workmaster, Abigail T. Stokes, and Caroline J. Watson of Miller & Chevalier Chartered, Washington, DC, counsel for Appellant. Sarah E. Park, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DRUMMOND, KULLBERG, and CHADWICK. CHADWICK, Board Judge. This appeal concerns orders placed under a Federal Supply Schedule contract. The contractor alleges that the orders were cancelled and that it is entitled to fixed cancellation charges under its commercial price list. The agency maintains that not all of the orders were cancelled and that any “cancellations” that did occur must be viewed as terminations for the Government’s convenience under the applicable termination clause. Prior to discovery, the contractor seeks partial summary judgment on two, essentially legal issues, which it phrases as (1) whether “the [schedule] Contract’s standard termination- for-convenience clause takes precedence over [a] cancellation provision” or vice versa, and CBCA 6543 2 (2) whether the contractor “violated an obligation to publish the full text of its [commercial] Terms and Conditions” for the ordering agency to consult before placing orders. The agency opposes the contractor’s motion as to both issues. We cannot resolve the issues presented on this limited record. The schedule contract is not clearly enough written to allow us to do so. We find that, in the event of a conflict between the “commercial price list” incorporated in the schedule contract and the standard termination provision in the contract, the price list would control—but that conclusion does not get us very far. Among other things, the price list incorporated in the schedule contract does not state a price for cancelling an order, and the language used in the price list to refer the reader to a separate, unattached “terms and conditions” document, which allegedly contained the cancellation charge, is too vague or ambiguous for us to interpret in favor of either party without further factual development. Background We summarized the filing history of this appeal in CSI Aviation, Inc. v. General Services Administration, CBCA 6543 (Mar. 10, 2020) (denying a motion by the ordering agency to intervene). As we explained there, we are satisfied at this time that we have jurisdiction of this appeal from a deemed denial by a General Services Administration (GSA) contracting officer of a certified claim. We turn to facts pertinent to the motion. GSA awarded the appellant, CSI Aviation, Inc. (CSI), a schedule contract for air charter brokerage services and ancillary supplies and services in March 2009. We have the schedule contract in the record. It consists in part of a standard form 1449 and an attachment titled, “Attachment to the Standard Form 1449.” The attachment is two pages and has three numbered sections. The third section reads: 3. The following documents are hereby incorporated and made part of the contract: a. [A revised solicitation] dated February 10, 2009 . . . . b. [Another solicitation] dated March 24, 2004 . . . . c. Offer dated November 6, 2008. d. [A wage determination.] e. [Final proposal revision] letter dated March 9, 2009. f. Revised Commercial Price List, submitted March 9, 2009. Also in the record is the March 9, 2009, “CSI Commercial Price List.” It is three pages. The first page and most of the second page contain a schedule of hourly prices for CBCA 6543 3 various aircraft, identified by type, size, and number of seats. The third page of the commercial price list contains language at issue. The disputed paragraph reads in full: Terms & Conditions Period of performance longer than 30 days will incur bi-monthly billing (every 15 days).