Freedom NY, Inc. (“Freedom”) petitions for panel rehearing and rehearing en bane. We reaffirm our earlier decision affirming in part, rеversing in part, and remanding to the Armed Services Board of Contract Appeals (“Board”).
Freedom asserts that rehearing is warranted because we should have ruled that a letter from Freedom to the Defense Logistics Agency (“DLA”) was incorporated into Modification 25. Freedom argues that the Board found аs a matter of fact that the letter was attached to Mоdification 25:
On 29 May 1986, Henry Thomas and consultant Francois met with PCO Ban-koff. Mr. Thomas had a 28 May 1986 letter to DLA’s R. Chiesa (ex. G-40), conforming in substance to the 2 May 1986 version, attached to proposed Modification No. P00025 (P00025). Mr. Bankoff saw the 28 May date of that letter, and provided an essentially identical FNY 13 May 1986 letter to Mr. Chiesa, which Mr. Thomas attached to Modification No. P00025.
Freedom NY, Inc.,
ASBCA No. 43965, 01-2 B.C.A. (CCH) ¶ 31,585, at 156,055-56,
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As an initial matter, we note that Freedom hаs waived this argument. Freedom admits that “the parties’ original briefs did nоt fully consider or address the issues raised in Freedom’s Petition.” “[A]n issue not raised by an appellant in its opening brief ... is waived.”
Pandrol USA, LP v. Airboss Ry. Prods.,
Even if the argument had not been waived, Freedom would not prevail on thе merits. The parties signed Modification 25 on May 29, 1986. At that meeting, the Board found simply that Mr. Thomas, the president of Freedom, had attаched the May 13 and May 28 letters (which were substantially identical) dеscribing an alleged side agreement to his copies of Mоdification 25. One party to a contract cannot bind the оther simply by attaching a document to a copy of the contract, even if that particular copy is signed. Restatement (Second) of Contracts § 132 cmt. e (1981) (“It is sufficient that ... the party to be charged physically attaches one document to the other .... ” (emphasis added)); id. § 132 cmt. c, illus. 4 (“[T]he fastening [of two sheets by A] is a sufficient adoptiоn of A’s signature with reference to both sheets to charge A, but only if the evidenсe of the fastening is clear and convincing.” (emphasis addеd)). Rather, the documents must clearly indicate that the partiеs intended that they be considered together as a single contract. Id. § 132 (“The memorandum may consist of several writings if one of the writings is signed and the writings in the circumstances clearly indicate that they relate to the same transaction.” (emphasis added)). In sharp contrast to this requirement, the May 13 and May 28 letters expressly state that they are not part of Modification 25:
During those settlement negotiations betwеen Freedom’s representatives and DLA, significant matters werе discussed relating to Freedom’s participation in the MRE Assembly Prоgram. It was agreed that the understandings reached on those matters were not appropriate for inclusion in the Modifiсation] but were more appropriately to be addressed in a separate letter.
In addition, Modification 25 itself сontains an integration clause. Therefore, Modification 25 in this case cannot be read to make the letters a part of the contract. Freedom’s other contentions also are without merit.
Accordingly, Freedom’s petition for panel rehearing is denied.
COSTS
No costs.