*2 SCHALL, Circuit Judge.
This action arises under the Contract Dis- putes Act of (“CDA”), as amended (1994). §§ U.S.C. 601-613 The United from, Navy (“Navy”) States appeals part of the decision of the Armed Services Board of (“Board”) Appeals Contract in CESSNA Air- Co., ASBCA No. 95-1 BCA craft ¶ (CCH) 27,560, (March WL 113915 1995). decision, In its the Board sustained appeal of CESSNA Company Aircraft (“Cessna”) seeking an equitable adjustment under its contract with the for training services. We reverse.
BACKGROUND I.
Cessna was awarded Contract No. (“the contract”) by N00019-83-C-0090 Navy May 10,1983. Cessna, on 95-1 at BCA 137,344. The contract was a firm fixed-price services contract titled “Undergraduate Na- Flight val Offieer/Training System Upgrade (UNFO/TSO).” Id. Under Cessna was to provide services to assist in navigation radar and undergrad- for Kapin, Laureen Attorney, Trial Commer- (“UNFOs”). uate naval officers Id. Litigation Branch, Division, cial Civil Depart- procurement grew out of the fact that Justice, DC, Washington, ment argued for the T-39 using aircraft had been defendant-appellant. With her on the brief its UNFO program becoming were Hunger, Frank were W. Attorney Assistant obsolete. Id. 137,345. In General, Cohen, Director, David M. decided to multi-year enter into a Rice, Richard E. Assistant Director. Of for services under 10 U.S.C. counsel on the brief Anthony were R. (1994),1 2306(g) rather than purchase its McCann, Department of the Navy, Arlington, Id. equipment. own VA, Sanichas, and Evadne Department of the Request issued for Informa- Navy, Bruno, of San CA. (“RFI”) 14, 1982, May tion setting forth Janik, Michael T. Cuneo, & McKenna what it was contemplating in procurement its L.L.P., DC, Washington, argued, plain- for inviting potential bidders to attend a tiff-appellee. himWith on the were presolicitation brief C. May conference to be held on Stanley Dees P. and John Wunderli. 137,345. 95-1 BCA at RFI, stated: “Annual NEWMAN, LOURIE, Before training systems designed will be support SCHALL, Judges. Circuit tactical Flight [Naval Officer] rate § 2306(g) 1. 10 U.S.C. agency allows an to "enter funds obligation would otherwise available for periods into contracts only of not year more than five within the appropriat- fiscal for which years” services, types certain "for which ed.” dent) radar on Contractor-furnished year. For students of from 300-350 configuration. of common flying aircraft equipped the estimated purposes planning range training will to conduct needed gradual phase- Because of a year.” The 12,000-17,000 from *3 begin services, was to the contractor in of contemplated num- specify RFI did 17,000 training airborne of providing a total graduated student. per hours ber of year con- of the in the third hours service RFI the Navy also stated that 1986). “Program De- (FY Id. The tract of the statement “represents reliable RFQ Objectives” of the section scription and ap- procurement possible and requirement C, stating language of Section the reiterated requirement.” satisfying this proaches for within training the radar on that “[h]ands-on conference, potential pre-solicitation At the aircraft, training instructor as the as well the procure- about the questions asked bidders training services, consist airborne pilot will Cessna, 95-1 answered. had them ment and 17,000 year (approxi- per services 29,1982, the 137,345. On June at BCA student).” parts Other mately 58 hours bidders, in written potential distributed 17,000 airborne recited the of the contract the answers from form, questions and the (“ATSH”) provision training service Id. conference. pre-solicitation parenthetical. by unaccompanied the 58-hour hours of questions at the conference for clauses called A number These fourth, third, the rate of provided issue of in to be addressed services option would years that the contractor and in the program services and fifth response to all provide. years. be consistently re- questions, such RFQ were a Statement to the Attached bidders to then-forth- potential
ferred training syllabus (“SOW”) then and the Work (“RFQ”). Quotations Request coming program. by in UNFO used asked, [Navy] going to “If question One defined of the SOW Paragraph 3.1.2 they will [training] syllabus modify the where support services: contractor scope of training?” The info distributed get their equipment all shall furnish The Contractor not intend to does “The answer read: required to ensure the UNFO and services syllabus.” modify the Navy use System is Training available with the representatives met provisions of this in accordance Thaubald, Commander, Captain Wing provide shall The Contractor SOW.... him questioned September accomplish the annual aircraft sufficient Cessna, 95- provision. about the and meet requirement rate UNFO 137,346. Captain testi- Thaubald 1 BCA at The Gov- completion rate. mission a 95% that, meeting, at the Board before fied flights on may order may or ernment usage to Cessna “current indicated he necessity day, depending on the any given annually, but flying hours projected suitability flying condi- work and group Congress approved a battle if operations will be The schedule tions. [Navy] use hours.” would increase coop- with the by the Government planned Id. Representative. eration of Contractor’s 1, 1982, Navy issued its October On be conducted flight operations will Most 137,345. The RFQ. 95-1 BCA hours, night some during daylight however contractor was to services required. operations will be overnight C, “Descrip- titled Section were described requires training syllabus current It Specifications.” stated tion (3) of one overnight flights week three contractor (1) (2) night’s duration. or two to assist Radar provide services was the to the SOW Attached Undergraduate Na- training of Navigation by use syllabus or “curricula” then shall Flight These services val Officers. stated, the SOW Paragraph 3.1.1 of Navy. airborne rate of of an consist annual copies of planning purposes, “For (approximately 58 Contractor training service currently used existing curricula per graduated stu- training hours Air Training Chief of Naval for training stu- Answer: The annual ... rate for services Flight dent Naval Officers are attached.” needed should proposed by con- There was no indication in the SOW as to tractor RFQ based on requirements. whether or not the would be altered Question: What will factors be used to Navy. According ap- to the syllabus determine the annual rate for services? pended SOW, UNFO Answer: The contractor should propose program was to be conducted in curricu- five the annual rate for services based on the (one la grouped phases: into three basic RFQ. (one curriculum), curriculum), intermediate On November released (three curricula). and advanced the answers to questions additional that had *4 been question received. One and its answer flight basic was conducted on were as follows: aircraft, Navy aircraft, not on Cessna’s T-47 Question: To enable each offeror pro- and part was not thus pose the solution, most cost effective will requirement. The intermediate curriculum government the specify the following: required 12 hours of for all UNFOs. 1) per gallon. Fuel cost After completing phase, the intermediate an 2) Escalation factor. UNFO take would one of the curricula three 3) in phase. the advanced Expected (We Each flight curriculum in under- phase advanced stand hourly had its own may train- be the max- imum[) ing requirement. ]. example, For in UNFOs Navigation” the “Tactical segment would re- stated, Answer: previously As we cannot ceive training flight hours; 37.2 price in reveal used, UNFOs of fuel to be nor the “Overwater can Navigation” Jet segment we reveal the other factors used to would training flight hours; receive 37.2 estimate fuel costs. and UNFOs in the Intercept “Radar seg- Officer” In its proposal, response submitted in ment would receive training flight 46.3 hours. RFQ 1, 1982, on December Cessna stat- Therefore, UNFOs Intercept Radar ed: “Personnel and requirements aircraft program Officer would receive the most have been derived based on training flight By hours. adding flight service levels and are based on expe- current hours in the intermediate curriculum to the rience as modified to meet the levels estab- 46.3 hours in Intercept the Radar Offi- RFQ.” lished in the Board, Before the curriculum, cer a bidder could deduce that an Lyle, Program James Manager Cessna, UNFO up would receive to 58.3 hours of testified that Cessna upon relied training. attached SOW preparing its bid. RFQ issued, After the post-solicita- 4, April In its offer, 1983 best and final tion conference 18-19, was held on October which incorporated by reference its Decem- Cessna, 137,346. 95-1 BCA at At the ber 1982 proposal and which was revised conference, potential bidders had a chance to April Cessna offered ra- fifteen questions ask and have them answered. On equipped dar T-47 replace aircraft 29, 1982, October distributed the aircraft, T-39 than twenty rather questions conference, asked at along had originally thought Cessna, it necessary. questions. answers to the Among Id. 137,347. 95-1 BCA at Cessna also offered questions asked and answered were the fol- price lower in its best final offer it than lowing: previously had bid. Id. based Question: Would the annual for ser- rates best and upon final offer training sylla- remain vices constant over the life of the bus RFQ, attached to upon not, contract? If what factors could stating the clause that approximately 58 cause it to change? If an option to flight hours per student required. would exercised, extend the contract 137,346-47. how Id. at According to change? would the rate calculated would use full contingent contemplated the target flights. used Cessna's aircraft to conduct 137,359-51. specification only Id. at if the increased the number of students it trained under the Objecting updated to the use of the program. 137,347. The Board found syllabus operational changes, and to the Navy projected that both Cessna and the equitable Cessna filed a certified claim for an keep training that if the were to stu- adjustment contracting with the officer on dents at the same rate as it had under the June seeking 1987. Cessna stated that it was training syllabus, only 12,000 a maximum of equitable adjustment because the hours wouldbe utilized. Id. at changes had made constructive (i) using such as Cessna's "services proposal, however, In its December 1982 fly nontraining fly missions as well as to provi- Cessna referred to the ATSIH training pa missions outside the contract's qualification. describing sion without ra- rameters," (ii) changing "the UNFO navigation training, dar and Cessna stated training syllabus to increase the train prospective contract, "[u]nder Cess- ing requirements provided by from those na is to services to assist in radar Navy bidding purposes." Cessna and the navigation training consisting of UNFOs *5 Navy negotiated until October 1988. On 17,000 of an annual rate of service hours in Cessna-furnished radar- 11, 1988,pursuant CDA, October to the Cess appeal na filed an with the Board on the equipped configuration." aircraft of common ground contracting officer had not Referring "Full-Up Operational to the issued a final decision within a reasonable contract, UNFO/TSU Services Phase" of the time.2 "During phase, flying Cessna stated: February 2, 1989, contracting availabifity 17,000 per On offi- hour will be denying year." cer issued his decision quest Cessna's re- equitable adjustment. for an With re- spect updated to the issue of whether the II. syllabus change requiring constituted a equitable adjustment changes under entering After into the contract and reach- contracting clause of the officer ing years, Navy the later realized that it stated, "I find that the is irrelevant utilizing 17,000 per year. was not ATSH requirement. to the annual hour I Cessna, 137,348. 95-i BCA at In order to clearly find that the contract entitles the use all of the ATSH for which it believed it Navy hours of airborne contracted, Navy updated had ing syllabus its train- year." respect services each With to the to increase the number of operational changes, contracting officer 137,349. UNFO to 78 hours. Id. at found that Cessna was not entitled to an operational changes also made to equitable adjustment. scope utilizing of the services it was 137,349-51. under the contract. Id. at In III. operational changes, terms of be- split The Board rendered a 3-2 decisionin gan requiring transport Cessna to non-stu- appeal. unanimously The Board deter- passengers, dent such as VIPs and operational changes mined that the were out- log flight officers who needed to scope side the of the contract and thus con- flight pay. 137,349- in order to receive Id. at changes. stituted per- 50. The also Cessna to flights, overnight respect change syllabus, form rescue and to make With in the flights beyond specified above and those in the Board concludedthat "the did not 137,350. addition, simply buy 17,000 the contract. undefined airborne train- decision," 605(c)(5)(1994), contracting for a 41 U.S.C. 2. If "the officerhas failedto issuea denied," final decisionon the contractor'sclaim or to notify then the claim is "deemed Pathman the contractorof the timewithinwhicha Const.Co.v. United (Fed.Cir.1987). 817F.2d issued, days decisionwillbe and at least60 have passedsincethe date the claimwas submitted contract, albeit, ing hours. The dependent service estimate on such variables as the necessarily place, in one refined and defined actual number of per flight students trained precisely (which what an airborne hour was may affect efficiency), instruction Cessna, 137,351. to be.” 95-1 at BCA (as specific training equipment to which the Navy “promised Board found that the [Cess- latitude), contract allowed some par- and the approximately na] no more than ticular curriculum utilized.” spent per hours of ATSH would to be have 137,354. 95-1 BCA at The dissent found equitable adjust- student” and allowed an unreasonable interpretation Cessna’s in price change syllabus. ment for the Id. parenthetical 58-hour binding provision. as a 137,352. determined, The Board based on The dissent further stated that even if Cess- testimony Navy personnel, that “the interpretation na’s reasonable, were the in- Navy assumed the risk it would not be terpretation gave patent rise to ambiguity. full able use the hours.”3 Id. at circumstances, Id. Under these the dissent stated, “pre-award inquiry would be neces- sary.” Id. decision,
In reaching rejected the Board argument
provision only was the limitation on its use of DISCUSSION Instead, ATSH under the contract.
Board determined Cessna “was indeed I. obligated provide up ATSH year price adjustment only without but so appeals We review brought pursuant long ... averaged as [t]hose hours out to to the CDA under the standard of review set ‘approximately per graduated 58 hours stu- *6 609(b) (1994): in forth 41 U.S.C. dent’ parenthetically as set out in the con- any the decision on question of fact shall 137,- tract schedule.” 95-1 BCA at be final and conclusive and shall not be set 352. The Board further determined that the fraudulent, aside unless the promised had decision is change it would or that not (and syllabus arbitrary, capricious, grossly the thus or or pro- alter the 58-hour so erro- vision) necessarily and that the neous as imply faith, contractor would not bad or have average an of more than 58 if such supported decision is not by sub- per hours student. Id. The Board stantial evidence. interpreted the November 1982 case, government In this the does not chal- response written question to a bidder’s about lenge Rather, the Board’s of fact. findings expected the number of hours that is below, argues as discussed it that the deci- quoted promise above as a that it would not of the Board sion is incorrect as a matter of change syllabus calling the for 58 hours of We are presented solely law. therefore flight training per UNFO. Id. The Board issues law. We review issues of law de parenthetical concluded that the 58-hour Stone, novo. 958 F.2d Triax-Pacific precluded, “would not have from (Fed.Cir.1992). 17,000 using hours had the increased the number of But those students. written appeal, government On does not chal- qualifying preclude words do from lenge the Board’s insofar decision as it re- increasing the stated number of hours operational lates to the changes passenger — graduated price adjust- student without some flights, flights, overnight flights, rescue and ment.” Id. target Therefore, flights. we are not called upon to
Reasoning holding disturb the Board’s that because contract was (1) requirements for equitable adjust- “neither nor for is entitled to an indefi- Cessna an quantity,” nite dissenting price the two judges overnight in- ment for flights and terpreted (2) the 58-hour parenthetical as “an target flights, damages and for the Marshall, 17,000 Charles L. who had been pay the con- intended to ATSH whether contract, tracting officer on the testified that the govern- Addressing the ed the contract. flights.4 Cess- and rescue flights
passenger contends argument, Cessna ment’s second na, 95-1 BCA was latent ambiguity in the contract any challenge on does government What that, doctrine of accordingly, under the holding that Cessna the Board’s appeal is not proferentem, it was contra a re- adjustment as equitable to an entitled set forth For reasons clarification. seek increasing the change sult of from below, is barred we hold that. to 78 per UNFO hours number syl- adjustment seeking equitable an contends government hours. interpre- because, of its change in view labus a matter incorrect as holding is Board’s duty under a it tation First, government respects. in two law pro- submitting its before seek clarification construing the erred the Board argues, posal. train- airborne rate phrase “annual (approximately ing service II. student)” as graduated training hours ATSH, by the qualified calling for contract was a undisputed that It is training hours approximately provision of contract. Such a fixed-price services firm above, Board deter- As seen per UNFO. set requirement that the mined subject t price that is provides for o contingency merely a C was in Section forth contrac adjustment basis of the on the number depend upon an increased that would performing experience in cost tor’s requirement of students, a flat than rather upon type places This contract gov- annually. The of service full re risk and contractor maximum interpretation is ernment’s resulting prof sponsibility for all costs unqualified ATSH for an contracted provides maximum incentive loss. It per stu- to 58 hours reference costs and to control for the contractor merely an estimate. Under dent effectively imposes a mini perform change interpretation, a government’s upon the con burden administrative mum the number syllabus to increase tracting parties. to a give rise could per student (1995).5 § 16.202-1 48 C.F.R. long as adjustment equitable so claim for *7 Acquisition According the Federal to more than not use did (“FAR”), fixed-price contracts Regulations Second, government asserts ATSH. acquiring commercial items for are “suitable contract neces- interpretation of the Cessna’s supplies or ser acquiring other ... for ambiguity of which an sarily gave to rise reasonably func definite basis of vices these circum- on Under was aware. Cessna Id. at specifications.” tional or detailed to seek stances, duty under a Cessna suggest situa regulations § 16.202-2. The submitting proposal, its clarification before may type of contract be tions where this Accordingly, Cessna it do. which did not performance un as appropriate, such when recovery. part, For from barred reasonably identified and can be correctly interpret- certainties Board responds that the 137,- Regulations replaced Acquisition them or not. 5. Federal flewit The 95-1 BCA Regulations System, Procurement Federal 347. Acquisition Regulations, and the the Defense brief, government ar- in its In a footnote Fed.Reg. Regulations. 48 Procurement NASA re- gues passing that the contract "[b]ecause 19, 1983). 48 (September C.F.R. 42102 per year, quired ATSH Cessna to correspond to Armed §§ and 16.202-2 16.202-1 already Navy's position has is that Cessna ... the 3^04.2(a) Regulations Procurement Services providing to paid student been for 3-404.2(b) Reg- Procurement and of Federal only to Cessna is Consequently, entitled officers. event, any is no System. there dis- In ulations expenses that Cess- compensation added parties of as to the nature a pute between operational solely” due na incurred fixed-price contract. firm express correct- changes. no views We above, the As noted ness of this statement. subject recovery be the is to amount of Cessna's proceedings before the Board. of further
1305 16.202-2(d). quantified. (Fed.Cir.1985). Also, Because apply we the interpre fixed-price contracts do not a contain method tation that accords a meaning reasonable varying price of the contract in the each of provisions. Mfg. Hol-Gar Corp. circumstances, event of they unforeseen as- United 169 Ct.Cl. 351 F.2d sign the risk the contractor that the actual (1965). Finally, where agree an performance cost of will higher be than the general ment contains specific provisions price of the contract. any respect which are in inconsistent, “the provision directed particular to a matter con interpretation Contract is an issue provision trols over the which is general in of law. Interstate Gen. Gov’t Contractors v. its terms.” Rice, Hills Materials Co. v. Stone, (Fed.Cir.1992). 980 F.2d (Fed.Cir.1992). F.2d Here, we are Reading the 58-hour statement in the con separate faced provisions a single of contract, text of the entire we conclude that contract, provisions one set specific of it was reasonable for the Navy interpret general. one specific provisions The of the First, the statement as an given estimate. contract portions are the not that this was firm fixed-price a contract that ed above that called for of paid assured Cessna would regardless be services for various third, work items for the the number of airborne fourth, and fifth years program and for the consumed,6 it was reasonable for the years, option qualification without as to the position take the should number of hours per student. general interpreted containing as provision a po provisions, course, are the sections tentially qualifying the manner in which the contract containing the “58 airborne Navy used the full amount of the services per graduated parenthetical. student” procured. way, another setting Put in the reasonably could take position this in the language absence of whole, the contract as a including the clearly unambiguously placing qualifi specific provisions, more compelled the con cation on the manner which clusion that parenthetical the 58-hour merely could consume the procuring, services it was represented an estimate and therefore did it was reasonable for the Navy interpret place qualification on the extent the reference per graduated to 58 hours stu services to which the was entitled un dent so, as especially estimate. This was der believe, we in view of the fact that the 58- appeared parentheses statement The foregoing notwithstanding, we qualified by “approximately.” word assume purpose will for the deciding short, hardly can be said that the state appeal that it was reasonable for Cessna to ment was garb clothed in of a binding construe the “annual rate of provision. contractual provision service qualified hours” as *8 addition, In settled principles by of “approximately 58 contract interpretation lead us to the conclu parenthetical. service hours” We hold as a sion that Navy, law, was reasonable however, for the that, matter of of view the viewing when whole, the contract as a to nature of the principles contract and the of parenthetical construe the 58-hour as an es contract interpretation above, noted this con timate, rather binding provision. than a We struction of the gave patent rise ato read language particular of a contractual ambiguity. States, See Newsom v. United provision in the context of agree 301, the entire 647, (Cl.Ct.1982) 230 Ct.Cl. 676 F.2d 649 ment, United Controls, (“The States v. Johnson existence a patent of ambiguity is a Inc., 1541, 713 F.2d (Fed.Cir.1983), 1555 question of interpretation contractual which construe the contract so as to court.”). render must be decided by novo de We portions of it meaningless, presume Fortec Construc both government Cessna States, v. 1288, tors United 760 F.2d 1292 “to endowed with at least a modicum of contracting Before the Board, officer testi- [hours] whether flew it or not.” [they] fied that intended to "pay
1306 sleeves.”); Aviation Contrac- conduit of the acumen,” Tire Rubber Firestone & business States, 945 21, Inc. v. United Employees, 444 F.2d tor 195 Ct.Cl. v. United Co. (Fed.Cir.1991) (holding that aas 1571 (1971), view Cessna F.2d and we by gov- response have should Cessna evasive” a “somewhat knowledgeable bidder. the con- questioning of was pre-bid construction that its bidders’ recognized to ernment par- upon qualified a notice” as it “clearly put bidders tract —based to sufficient in con- squarely op- statement —was to enthetical restrict government intended that the that of the contract the construction clarifica- Having flict with to seek failed pricing). tion nature of the basic reasonably from flowed rely upon its tion, was not entitled Cessna (firm provi- and its fixed-price) the contract Grumman the contract. interpretation ambiguity an obli- created patent This sions. Dalton, F.3d Corp. Sys. Data part to seek clarification Cessna’s gation on (“If con- (Fed.Cir.1996) contains a solicitation Con- proposal. Fortec submitting its before a ambiguous, patently language that is tract (“The structors, existence at 1291 760 F.2d the Board argue, before protestor cannot in the contract raises ambiguity patent court, interpretation is its this before of the regardless reasonable- duty inquiry, sought protestor clarifica- proper unless interpretation.”); the contractor’s ness of agency language from the before tion of States, 212 v. United Arkansas S.O.G. of The process.”) procurement the end of (1976) (“The 546 F.2d Ct.Cl. holding that Cessna therefore erred Board contrac- example of a presents another case adjustment equitable an was entitled ambiguity who, patent awith faced tor change. syllabus of the reason documents, his meet did not Government bid ambiguity resolved to have responsibility CONCLUSION bidding.”). before reasons, part foregoing For the have rec what it should Faced with that relates decision Board’s light of its ambiguity patent ognized as a —in change is reversed. fixed-price con firm of the interpretation obligation of not meet its tract —Cessna did asserted been It has never COSTS
inquiry. from sought clarification Cessna its own costs. party shall bear Each RFQ of the interpretation to its regard REVERSED. At the same submitting proposal. before pro and answers time, questions none NEWMAN, Judge, bidders Circuit prospective vided PAULINE quoted above have point. We dissenting. clarified the pertinent that are answers questions and of Contract Board Armed Services answers questions and These to this issue. aris- disputes resolving the several Appeals, ambig the issue or are not address either do found ing from event, contrary to what the uous. use of Cessna’s have unrestricted did not they determined, it cannot be said Board up to services aircraft concluding provide basis that it held time. Board construction shared Cessna’s the contract interpretation of incorrect circumstances, Cessna did Under these beyond provide services require *9 seeking obligation of clarification. meet its contract, up in the explicitly set forth those Co., Plumbing Heating Community & See 17,000 This the hours. of to maximum the (Fed.Cir. Kelso, F.2d Inc. v. Navy appeals. that the ruling 1993) (“The the ... letter Navy’s response Navy’s require- the Board held that The the the expressly address issue failed to let, the contract was imposed after ments strong a provided thus conduit sleeves and places, that fly to various VIP’s that Cessna Community still that confusion indication to target flights, planes be used Community the Cessna parties. the existed between fly to ski and beach resorts that Cessna request further obligated to was therefore hometowns, that the Cessna passengers’ proper the installation regarding clarification rejected Board flights, approximately 58. The the general rescue used for planes be Navy’s litigation-created position that it had provide planes be used the Cessna that Navy planes per- unlimited call on the Cessna personnel, for non-student flight time sonnel, by substantially than and held that the was bound fly more three that Cessna contract, week, provisions including the the and that Cessna the overnight flights per per flight provision approximately 58 hours stu- substantially more than 58 provide Indeed, student, all the dent. the has taken training per violated the rejected strange position arguing that its own con- explicitly the The Board requirement significance. tract is of no argument that it had unlimited government’s 17,000 up hours of Cessna’s call on representations during Evidence as to the time. process bid the Board. were before inquiry figure, only category of There was an as to the Navy appeals one The activity. not and witnesses for both sides testified that The does unauthorized figure findings concerning understanding their was that this was Board’s appeal the maximum, Congress approved “if a battle ceiling, including the Board’s a increase,” group in explicit contract limitations the words of the finding that the wing Navy represented open-ended entitle- Commander. The not overridden are any explicitly training schedule was 58 purpose. hours for ment to student, per figure in testimony to the effect that included The Board heard The contract states: Navy and viewed the con- the contract. both the Cessna i.e., bid; way in when it was tract the same OR SECTION C—DESCRIPTION figure hours was maximum ... These services SPECIFICATIONS enlargement possible to accommodate shall consist of an annual rate of activi- Wing, and not a blank cheek (approxi- service hours provided. There beyond explicitly those ties mately 58 airborne service hours unresolved, ambiguity patent student).... at the was no per graduated entered into. time the contract was in Cessna structured its low bid accordance requirements. “ap- representations with these explicitly provided .for The contract Prods., Sylvania flight training per Elec. Inc. v. United 58 hours” of See proximately 198 Ct.Cl. 458 F.2d In evidence was the statement of student. (1972) (if rely govern contractors can not contracting officer that the “does modify syllabus.” representations ment “the amounts intend to Section results”). would soon show the provided bids received
3.1.1 of the Statement Work (the Syl- the curriculum for student Navy was bound The Board held that the labus) planning for “Contractor was attached Sylla- representations Training purposes” purpose and that its was to “define bus, con- pre-bid explanations, and the necessary support the contractor effort majority, overruling panel tract itself. The Undergraduate training requirement of Board, properly holds panel Flight Although the Naval Officers.” required to 78 airborne majority to find that there was a chooses chose, years three hours when the so concerning obligation to patent ambiguity Board found performance. into contract student, provide 58 hours view of Although agreement. not the Cess- 17,000 hours, Board, viewing ceiling of “Congress ap- na took risk of whether understandings mutual embodied increase,” group the stated proved battle ambiguity. In- did not find such limit, 17,000 hour that did not purpose of the deed, Navy did not state that it was figure to 78 change include a of the 58 hour student until entitled to hours, more than it included years performance. into contract three provi- beyond other excursions respect the sions. This court is dispute, Navy does not as indeed it *10 findings Board’s not, explicit contract is as to the can fraudulent, or arbi- “approximately 58 hours” of time unless the decision is argue trary, capricious, grossly or errone- student. The does not that 78 is or so 1308 - faith, -,-, necessarily if imply bad U.S.
ous
to
S.Ct.
as
(1996) (“
2459-60,
supported
is not
substan-
‘punctili
such decision
hour limitation and its effect on the attempts enlarge respon-
various Cessna’s the contract decided sibilities under Dennis DUNN and Frank portion of the Board’s deci- the Board. This Ruiz, Petitioners, appealed. sion did not v. ruling appeal Board’s that the contract DEPARTMENT OF VETERANS give the an unrestricted call on did not AFFAIRS, Respondent. time. It is not before question. us to re-decide this No. 95-3732. ruling Thus I must dissent from the Appeals, United States Court of majority,
panel that bars Cessna from chal- Federal Circuit. lenging government’s position on what contract means. The role of the courts Oct. 1996. just is to assure fair and resolution of con- Denied; Suggestion Rehearing disputes tract to bar access to Board or —not Rehearing In Bane Declined judicial majority, panel review. The in bar- Dec. ring opportunity the contractor from the challenge government’s interpre- current
tation, dependence the nation in its disserves private governmental contractors to meet Corp.,
needs. See United States Winstar