Saighi v. General Services Administration ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
YASMIN SAIGHI,
Appellant
v.
GENERAL SERVICES ADMINISTRATION,
Appellee
______________________
2015-1859
______________________
Appeal from the Civilian Board of Contract Appeals in
No. 3693, Administrative Judges Jeri Kaylene Somers,
Jerome M. Drummond, R. Anthony McCann.
______________________
Decided: April 12, 2016
______________________
MITCHELL E. SHAMAS, Shamas Law Office, Tulsa, OK,
for appellant.
ALBERT S. IAROSSI, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for appellee. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., FRANKLIN
E. WHITE, JR.
______________________
2 SAIGHI v. GSA
Before WALLACH, BRYSON, and TARANTO, Circuit Judges.
PER CURIAM.
Appellant Yasmin Saighi seeks review of the decision
of the Civilian Board of Contract Appeals (“CBCA”),
granting the United States General Services Administra-
tion’s (“GSA”) motion for summary judgment 1 in Saighi v.
GSA, No. 3693, 2015 WL 1382046 (CBCA Mar. 25, 2015);
see also J.A. 1–7. 2 The CBCA denied Ms. Saighi’s claim
for a refund of the purchase price of a boat Ms. Saighi
purchased from GSA in an online auction. J.A. 7. For the
reasons articulated below, we affirm the CBCA’s decision.
BACKGROUND
I. Facts and Proceedings
A. Terms and Conditions of the Online Auction
In May 2013, GSA conducted an online auction for the
sale of the M/V Blankenship (“the Blankenship”), a
fire/patrol boat docked at the Kaskaskia Regional Port
District (“KRPD”) marina in Evansville, Illinois. See J.A.
2. GSA’s online posting identified the Blankenship as the
property to be sold, specified its location, and provided its
description. See J.A. 32–33. The terms and conditions of
the auction stated that the “[c]ondition of [the Blanken-
ship] is not warranted. Deficiencies, when known, have
been indicated in the property descriptions. However,
absence of any indicated deficiencies does not mean that
none exists. Therefore, the bidder should ascertain the
1 In describing this motion, the CBCA uses the
analogous term “summary relief.” J.A. 5. Throughout the
remainder of this opinion, we use “summary judgment.”
2 Because the electronic source does not include
pagination, we cite the CBCA’s decision as it appears in
the Joint Appendix.
SAIGHI v. GSA 3
condition of the item through physical inspection.” J.A.
26. GSA also warranted that the Blankenship “will
conform to its written description. Features, characteris-
tics, deficiencies, etc. not addressed in the description are
excluded from this warranty.” J.A. 26. Bidders were
cautioned that the Blankenship’s description represented
the “GSA’s best effort to describe the item based on in-
formation provided to it by the owning agency[,]” and that
“gross omissions regarding the functionality of items,
failures to cite major missing parts and/or restrictions
with regard to usage may occur.” J.A. 26. The terms and
conditions of the auction also provided that the “Govern-
ment does not warrant the merchantability of the proper-
ty or its purpose.” J.A. 26. Prospective bidders were
provided with a document detailing the terms and condi-
tions of the auction and were required to assent to them
before being allowed to submit a bid on the Blankenship.
See J.A. 22–30.
In addition to the warnings and disclaimers, the
terms and conditions set forth a procedure for winning
bidders to challenge GSA on the basis that the property
purchased failed to conform to its description, and seek a
refund of the purchase price. See J.A. 26. The contract
states: “[a] request for refund must be substantiated in
writing to the Contracting Officer for issues regarding
mis-described property, missing property[,] and voluntary
defaults within [fifteen] calendar days from the date of
payment.” J.A. 26.
Prior to the auction, with the help of her husband, Mr.
Hassan Mahjoub, Ms. Saighi agreed to physically inspect
the Blankenship. See J.A. 164. The KRPD marina, via its
general manager, Mr. Ed Weilbacher, was listed as the
inspection contact. See J.A. 32–33. Upon inspection, Ms.
Saighi “did not advise GSA as to any problems with the
[Blankenship].” See J.A. 2. On May 30, 2013, Ms. Saighi
was notified that her bid of $30,056 to purchase the
4 SAIGHI v. GSA
Blankenship was the highest offer and was awarded the
contract for the Blankenship. See J.A. 4. On June 6,
2013, Ms. Saighi subsequently tendered payment and
assumed possession of the Blankenship. See J.A. 134.
B. Ms. Saighi’s Refund Request
On October 27, 2013, Ms. Saighi sent an email to Vic-
toria Knotts, a GSA contracting officer, stating that she
was informed by local residents that the Blankenship
sank a few years before the sale. See J.A. 58. Ms. Saighi
claimed that upon discovering this “undisclosed fact by []
GSA[] in the auction’s item description,” she contacted an
engine company, which asserted that both engines of the
Blankenship needed to be overhauled at a cost of $96,000.
J.A. 58.
By letter dated November 19, 2013, Ms. Knotts re-
sponded to Ms. Saighi’s email. See J.A. 73–75. Ms.
Knotts asserted she “contacted [Mr.] Weilbacher . . . and
he confirmed the Blankenship was in sound condition and
afloat at dock for [two] years prior to th[e] sale.” J.A. 73.
Ms. Knotts also stated that Mr. Weilbacher “confirmed
that all bidders were made aware of the condition and he
made no assurances or guarantees that the engine ran.”
J.A. 73. Finally, Ms. Knotts stated that Ms. Saighi
“agreed to the . . . terms and conditions of the sale prior to
becoming an active bidder.” J.A. 73.
In response, Ms. Saighi reasserted her initial com-
plaint that the Blankenship sank before the auction and
claimed that the failure of Mr. Weilbacher to inform GSA
about the condition of the Blankenship, even though he
possessed knowledge that it sank, resulted in a bid great-
er than the actual value of the Blankenship. J.A. 76. As
a result, Ms. Saighi suggested two options that may be
taken by GSA to resolve the issue: 1) “refund [the] full
purchase price and money invested by [Ms. Saighi] so far
SAIGHI v. GSA 5
on the Blankenship,” or 2) “refund [fifty] percent of the
purchase price.” J.A. 76.
On December 11, 2013, Ms. Knotts issued a formal
decision denying Ms. Saighi’s claim. See J.A. 78–80. The
decision repeated the terms and conditions of the online
auction, asserted that Ms. Saighi’s claim was not timely
submitted, and refuted Ms. Saighi’s contention that the
Blankenship was inaccurately described in the sales
information. See J.A. 80.
C. CBCA Decision
Following GSA’s decision, Ms. Saighi appealed to the
CBCA. Similar to her arguments before Ms. Knotts, Ms.
Saighi argued that “agents of GSA in possession of the
[Blankenship] knew” that it sank and “failed to disclose
[this] fact in order to deter from devaluing the [Blanken-
ship].” J.A. 82. However, unlike her claim before Ms.
Knotts, Ms. Saighi “allege[d] . . . that the contract is
voidable based on agency and joint venture theories.” J.A.
5. According to Ms. Saighi, an agency relationship existed
between GSA and Illinois Contract Management Services
(“CMS”), (i.e., the state agency that placed the Blanken-
ship with KRPD) and CMS “failed to disclose to GSA that
the [Blankenship] sank prior to the sale and that both
engines had been submerged.” J.A. 5.
GSA moved for summary judgment, and Ms. Saighi
filed a cross-motion seeking the same relief. See J.A. 5.
The CBCA granted GSA’s motion, finding that no genuine
issue of material fact existed because Ms. Saighi alleged a
breach of contract before Ms. Knotts, but raised a differ-
ent claim on appeal to the CBCA (i.e., that the contract
with GSA is voidable). See J.A. 5–7. The CBCA asserted
that there is no basis for it “to decide [Ms. Saighi’s] alle-
gations that the contract is voidable based on agency and
joint venture theories, because the[] allegations involve
different operative facts from those presented to [Ms.
6 SAIGHI v. GSA
Knotts].” J.A. 7 (citation omitted). Accordingly, the
CBCA denied Ms. Saighi’s cross-motion seeking a refund
for the purchase price of the Blankenship.
Ms. Saighi appeals the CBCA’s decision. This court
possesses jurisdiction pursuant to 28 U.S.C. § 1295(a)(10)
(2012).
DISCUSSION
I. Standard of Review and Legal Framework
We review the CBCA’s conclusions of law without def-
erence. Reliable Contracting Grp., LLC v. Dep’t of Veter-
ans Affairs, 779 F.3d 1329, 1331 (Fed. Cir. 2015). This
court will uphold the CBCA’s factual findings unless those
findings are “(A) fraudulent, arbitrary, or capricious; (B)
so grossly erroneous as to necessarily imply bad faith; or
(C) not supported by substantial evidence.” 41 U.S.C.
§ 7107(b)(2) (2012).
The decision to grant summary judgment is a legal
conclusion, which we review without deference. See
Cessna Aircraft Co. v. Dalton, 126 F.3d 1442, 1446 (Fed.
Cir. 1997). Summary judgment is appropriate when
material facts are undisputed, or if, when disputed facts
are resolved in favor of the non-movant, judgment in law
is nonetheless required in favor of the movant. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986); Cooper
v. Ford Motor Co., 748 F.2d 677, 679 (Fed. Cir. 1984) (“We
determine whether, viewing the evidence in the light most
favorable to the non-movant and drawing all reasonable
inferences in favor of the non-movant, the moving party
was entitled to judgment as a matter of law.”).
“A contract is read in accordance with its express
terms and the plain meaning thereof.” C. Sanchez & Son,
Inc. v. United States, 6 F.3d 1539, 1543 (Fed. Cir. 1993)
(citations omitted). We must interpret the contract in a
manner that gives meaning to all of its provisions and
makes sense. Hughes Commc’ns Galaxy, Inc. v. United
SAIGHI v. GSA 7
States, 998 F.2d 953, 958 (Fed. Cir. 1993). Accordingly, if
the “provisions are clear and unambiguous, they must be
given their plain and ordinary meaning[.] . . . ” Alaska
Lumber & Pulp Co. v. Madigan, 2 F.3d 389, 392 (Fed. Cir.
1993) (citation omitted).
II. The CBCA Properly Granted Summary Judgment to
GSA
A. Ms. Saighi’s Agency/Joint Venture Arguments Are
Waived
Ms. Saighi disputes the CBCA’s summary judgment
determination. In particular, she asserts that “the CBCA
erred as a matter of law in failing to sustain [her] cross-
motion for summary [judgment].” Saighi Br. 26 (capitali-
zation modified). The crux of Ms. Saighi’s appeal rests on
showing that the contract with GSA is voidable due to
GSA’s material omissions (i.e., that the Blankenship sank
and GSA knew that its engines had been submerged)
about the condition of the Blankenship. 3 See id. at 12, 22.
Although Ms. Saighi does not present evidence that any
member of GSA possessed knowledge of the Blankenship’s
sinking, via an agency or joint venture theory, she seeks
to impute knowledge of KRPD marina’s general manager
Mr. Weilbacher to GSA. See id. at 18 (where Ms. Saighi
argues that (1) “[e]ither GSA and CMS were engaged in a
joint venture for the sale [of the Blankenship],” (2) “CMS
was the principal and GSA act[ed] as its agent,” or (3)
“GSA [was] . . . the principal and CMS an agent”). Ms.
Saighi further asserts that “under each possible business
relationship[,] GSA is imputed to have the knowledge of
[Mr.] Weilbacher regarding the condition of the [Blanken-
ship].” Id.
3 “[A] Government contract tainted by fraud or
wrong-doing is void ab initio.” Godley v. United States, 5
F.3d 1473, 1475 (Fed. Cir. 1993) (citation omitted).
8 SAIGHI v. GSA
The entirety of Ms. Saighi’s contention is predicated
on showing that Mr. Weilbacher possessed knowledge of
the sinking of the Blankenship, and that his knowledge
should be imputed to GSA. See id. at 13, 15, 17, 20, 26.
However, the CBCA did not address this issue because it
determined that it had “no basis . . . to decide [Ms.
Saighi’s] allegations” because they “involve different
operative facts from those presented to [Ms. Knotts].”
J.A. 7 (citation omitted). Instead, the CBCA grounded its
summary judgment determination on the fact that “[t]he
terms and conditions of the auction in which Ms. Saighi
purchased the [Blankenship] preclude the relief she
seeks.” J.A. 6.
We agree with the CBCA’s conclusion. Ms. Saighi’s
claim that the contract was voidable on the basis of an
agency or joint venture theory involves different operative
facts from those presented to the contracting officer. For
example, contrary to Ms. Saighi’s assertion, her initial
letter to Ms. Knotts did not assert that Mr. “Weilbacher
was acting as an agent of CMS [or that] his knowledge
[should be] imputed to GSA.” Saighi Br. 11. In fact, her
only mention of Mr. Weilbacher was in regard to his
conduct in helping her inspect the physical condition of
the Blankenship. See J.A. 58 (stating that “the custodian
of the Blankenship[,] Mr. Ed Weilbacher[,] was courteous,
hand[ed] out the vessel logbooks in time, and went out of
his ordinary duty to extend help”). Moreover, although
Ms. Saighi’s reply to Ms. Knotts’s November 19, 2013
response suggests that Mr. Weilbacher knew that the
Blankenship sank, she did not proffer any claim before
Ms. Knotts suggesting that his knowledge should be
imputed to GSA because he served as its agent, nor does
she assert that GSA and CMS engaged in an agency or
joint venture relationship. See J.A. 76 (asserting that
“what [is] at stake . . . is the failure of [] GSA/custodian of
the Blankenship to inform GSA about the accurate condi-
tion of the Blankenship although the custodian [and] the
SAIGHI v. GSA 9
long time Kaskaskian port secretary were fully aware of
the sunken events”).
Accordingly, Ms. Saighi did not present any claims to
Ms. Knotts that can reasonably be interpreted to support
the claims she now proffers before the CBCA (that Mr.
Weilbacher served as an agent for GSA and that GSA and
CMS were engaged in an agency or joint venture relation-
ship). Because Ms. Saighi failed to present these argu-
ments before the contracting officer, she has waived them.
See Gant v. United States, 417 F.3d 1328, 1332 (Fed. Cir.
2005) (“Arguments not made in the court or tribunal
whose order is under review are normally considered
waived.” (citation omitted)). Thus, the only issue before
us is whether the CBCA is correct in finding that Ms.
Saighi’s contract with GSA precludes her claim for a
refund of the purchase price of the Blankenship.
B. The Terms and Conditions of the Contract Pre-
clude Ms. Saighi’s Refund Request
Ms. Saighi does not dispute that the plain terms and
conditions of the contract foreclose the relief she seeks.
The contract explained that the only warranty with
regard to the condition of the Blankenship was that it
would conform to its written description. See J.A. 26
(“Features, characteristics, deficiencies, etc. not addressed
in the description are excluded from this warranty.”).
However, Ms. Saighi does not point to any aspect of the
Blankenship’s sale description that may be characterized
as inaccurate. The Blankenship’s description states that
it has “twin draft V6-92TA Detroit diesel engines.” J.A.
32 (capitalization modified). However, the description
makes no statement regarding their functionality. More-
over, the terms and conditions of the contract include a
provision titled “Description Warranty [and] Refunds,”
which expressly “cautions bidders that GSA’s written
description represents [its] best effort to describe the
[Blankenship]” based on available information and that
10 SAIGHI v. GSA
“gross omissions regarding the functionality of items,
failures to cite major parts and/or restrictions with re-
gards to usage may occur.” J.A. 26 (emphases added).
In any event, if, after winning the online auction and
taking possession of the property, the winning bidder
concluded that the Blankenship had been inaccurately
described, the terms and conditions of the contract pro-
vided a procedure whereby the winning bidder was re-
quired to inform GSA within a specific period of time of
the misdescription. Specifically, under the “Claims of
Misdescription” provision of the contract, once the proper-
ty had been moved by the winning bidder, as is the case
here, 4 a refund is available only if the successful bidder:
1) “submit[s] a written notice to the Sales Contracting
Officer within [fifteen] calendar days from the date of
payment email notification (the Purchaser’s Receipt)”; 2)
“maintain[s] the property in its purchased condition”; and
3) “return[s] [the property] at [his or her] expense to the
location designated by the Sales Contracting Officer or
any other federal official.” J.A. 27.
Ms. Saighi failed to satisfy any of these requirements.
See J.A. 6. In particular, she tendered payment for the
Blankenship on June 6, 2013. See J.A. 80. However, her
email to Ms. Knotts asserting that the Blankenship was
inaccurately described was dated October 27, 2013, five
months after the sale closed, see J.A. 58. Accordingly, the
terms and conditions of the online auction foreclose Ms.
Saighi’s claim. See George Hyman Constr. Co. v. United
States, 832 F.2d 574, 581 (Fed. Cir. 1987) (asserting that
contract language should be given its plain meaning
without rewriting or varying terms of the contract).
4 On June 29, 2013, Ms. Saighi authorized her hus-
band to move the Blankenship on her behalf. See J.A. 73.
SAIGHI v. GSA 11
Because Ms. Saighi did not point to any aspect of the
Blankenship’s written description that was inaccurately
described, nor did she satisfy the procedural requirements
of the contract with regard to establishing a claim for
misdescription, we affirm the CBCA’s summary judgment
determination.
CONCLUSION
For the foregoing reasons, the decision of the Civilian
Board of Contract Appeals is
AFFIRMED
COSTS
Each party shall bear its own costs.