Baldridge v. Government Printing Office ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHRISTINE BALDRIDGE,
(Doing Business as Inventory Discount Printers),
Petitioner,
v.
GOVERNMENT PRINTING OFFICE,
Respondent.
______________________
2012-6001
______________________
On appeal from the Government Accountability
Office, Contract Appeals Board No. 11-72994.
______________________
Decided: March 12, 2013
______________________
CHRISTINE BALDRIDGE, of San Diego, California, pro
se.
A. BONDURANT ELEY, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With her
on the brief were STUART F. DELERY, Principal Deputy
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and BRIAN M. SIMKIN, Assistant Director.
2 BALDRIDGE v. GPO
______________________
Before DYK, CLEVENGER, and MOORE, Circuit Judges.
PER CURIAM.
Christine Baldridge seeks review of a decision from
the Government Accountability Office’s Contract Appeals
Board (“Board”), which denied on summary judgment her
claim for equitable adjustment of a contract bid. Appeal
of: Inventory Disc. Printers, 11-1 B.C.A. (CCH) ¶ 34767,
2011 WL 2161802 (G.P.O.B.C.A. May 31, 2011) (“Board
Decision”). We affirm.
I
This case stems from an invitation for bids (“IFB”) is-
sued by the Government Printing Office (“GPO”) for
laminating and other printing activities for the Depart-
ment of the Army. The IFB, which provided for bid open-
ing on August 19, 2004, contemplated the award of a
contract for a 1-year base period commencing on Septem-
ber 1, with three 1-year option periods. Board Decision at
*1. The IFB announced that approximately 25 to 60
orders would be placed each year, that each order would
require approximately 100 to 5,000 copies, and that
occasional orders could require up to 30,000 copies. Id.The relevant portion of the IFB for the purposes of
this case is a clause that defined how these orders were to
be laminated:
After printing, laminate both sides of the sheet
with delustered polyester film, 0.0015″ thick.
Lamination must be suitable for inscribing with
grease pencil and erasing without damage to the
surface and must remain clear. Lamination must
not distort printed matter and must not produce
BALDRIDGE v. GPO 3
any visible evidence of an imperfect seal—no bub-
bles or blisters.
Id. (emphasis added).
Ms. Baldridge, doing business under the name “In-
ventory Discount Printers,” was awarded the contract
after submitting a bid that undercut the next lowest
bidder by 18%. Id. She fielded orders from 2004 until the
contract expired in 2005, and she continued processing
open orders (with the GPO’s permission) until 2007. Id.On August 24, 2010, Ms. Baldridge submitted a claim
to the contracting officer for equitable adjustment in the
amount of $38,299.28. 1 Id. at *2. She complained that
her original bid had been predicated upon the mistaken
belief that the GPO would accept orders that were lami-
nated using clear laminate film. Id. at *2. She soon
discovered that the GPO expected all orders to be lami-
nated using film with a less glossy finish, and this led to
unexpected additional costs. Id. at *2.
1 In 2007, Ms. Baldridge submitted a different claim
to the contract officer requesting equitable adjustment in
the same amount. See Appeal of: Inventory Disc. Printers,
GAOCAB No. 2008-2, 2009 WL 6615014 at *2
(G.P.O.B.C.A. Apr. 20, 2009). In that case, she com-
plained to the contracting agent that she had mistakenly
believed a “pouch” laminate would be acceptable, only to
later incur additional expense once she discovered that a
“roll” laminate was necessary. Id. After the contractor
rejected the claim, she appealed to the Board, but alleged
an entirely new basis for relief on appeal. Id at *4. The
Board thus dismissed her appeal for lack subject matter
jurisdiction over the new theory of relief. Id at *4. To the
extent Ms. Baldridge’s present appeal urges us to consider
the merits of that dismissal, we cannot do so because it
issued more than 120 days ago and so her request is
untimely under 41 U.S.C. § 7107(a)(1)(A).
4 BALDRIDGE v. GPO
After the GPO denied her request for equitable ad-
justment, Ms. Baldridge appealed to the Board. Id. at *2.
The GPO responded by moving for summary judgment,
requesting that the Board deny the appeal on the grounds
that the contract language was unambiguous, and that in
any event, any ambiguity was patent and so Ms.
Baldridge bore the responsibility to inquire. Id. at *2.
The Board agreed with the GPO on both counts. It
held that the IFB unambiguously required that all lami-
nation must be performed using “delustered polyester
film.” Citing the Webster’s New Collegiate Dictionary,
the Board reasoned that the “common, ordinary meaning
of the word ‘deluster’ is ‘to reduce the sheen of.’” Id. at *3.
Moreover, the Board found that the words “must remain
clear” do not modify the type of laminate finish, but
instead refer to how the laminate must hold up to inscrip-
tion by and erasure of a grease pencil. Id. at *3.
Finding that the contract unambiguously requested
some type of delustered finish, but that Ms. Baldridge
instead provided only a clear glossy finish, the Board
granted the GPO’s motion and denied the appeal.
Additionally, the Board found that even if the IFB
language was ambiguous, the ambiguity was patent, and
therefore Ms. Baldridge was required to seek clarification
before submitting her bid. Id. at *3 n.3.
Ms. Baldridge has timely petitioned this court to re-
view the Board’s Decision. We have jurisdiction under
41 U.S.C § 7107(a)(1)(A). We review the Board’s contract
interpretation, a question of law, de novo.
41 U.S.C § 7107(b)(1).
II
This dispute concerns laminate film, and more specifi-
cally, the differences between clear and delustered film.
For the purposes of this case, two key distinctions are
undisputed: first, that clear laminate film is unfinished
BALDRIDGE v. GPO 5
and is therefore glossier than delustered laminate film,
which may have a matte, satin or other type of finish; and
second, that clear laminate film is less expensive than
delustered laminate film.
Bearing these facts in mind, we turn to the petition-
er’s arguments. Ms. Baldridge asserts that she calculated
her original bid under the misconception that the IFB
called for clear laminate film. As it turned out, the GPO
wanted her to use more costly delustered laminate film,
which she provided. Now, she hopes to recover the differ-
ence between her original bid amount and her actual
costs.
Ms. Baldridge may only recover under this theory if
the IFB was ambiguous, which in turn is only possible if
her interpretation of the IFB was reasonable in the first
instance. Precision Pine & Timber, Inc. v. United States,
596 F.3d 817, 824 (Fed. Cir. 2010) (“Contract terms are
given their plain and ordinary meaning, unless the provi-
sions are ambiguous.”); Barron Bancshares, Inc. v. United
States, 366 F.3d 1360, 1375-76 (Fed. Cir. 2004) (“A con-
tract provision is only ambiguous if susceptible to more
than one reasonable meaning.”). If the plain language of
the IFB unambiguously called for delustered laminate
film, that language controls. Coast Fed. Bank, FSB v.
United States, 323 F.3d 1035, 1040-41 (Fed. Cir. 2003)
(“When the contractual language is unambiguous on its
face, our inquiry ends and the plain language of the
Agreement controls.”)
To this end, we observe that the IFB only once explic-
itly calls for a particular type of laminate film, when it
states that all lamination must be performed “with de-
lustered polyester film.” See Board Decision at *1. In
interpreting this language, the Board determined that the
plain meaning of “deluster” is “to remove the sheen of,”
and that clear laminate film has a glossy sheen and
therefore could not possibly have qualified as delustered.
6 BALDRIDGE v. GPO
Id. at *3. Ms. Baldridge’s petition does not challenge
these determinations.
Instead, she argues that this instruction is contradict-
ed by the very next sentence in the IFB, which requires
the lamination “must remain clear.” She believes that
this calls for a “clear” end product, which could only be
achieved using clear laminate film. She therefore con-
tends that this language, when juxtaposed with the prior
call for delustered film, rendered the contract subject to
multiple reasonable interpretations.
But the IFB never indicates that the laminate film
must be clear. Rather, it states that the laminated sheet
“must remain clear” after it has been inscribed with a
grease pencil, and then erased. Reading the “must re-
main clear” language in the context of the entire IFB, we
agree with the Board that this phrase refers to the condi-
tion of the laminate following grease pencil erasure, not to
the characteristics of the laminating film itself.
It is true, as Ms. Baldridge notes, that the IFB is si-
lent as to what type of delustered finish she should have
used, i.e., matte, satin, or some other. But it does not
follow that clear laminate film was therefore an accepta-
ble choice, because clear film indisputably is not de-
lustered.
Moreover, even if the IFB language was ambiguous,
the ambiguity is obvious from the face of the contract and
is therefore patent. Under Ms. Baldridge’s own theory,
the IFB calls for two completely inconsistent types of
laminate film. When presented with such a glaring
ambiguity, the government contractor has a duty to
inquire of the contracting officer as to the language’s true
meaning before submitting a bid. Triax Pac., Inc. v. W.,
130 F.3d 1469, 1474-75 (Fed. Cir. 1997). If the contractor
fails to do so, and here Ms. Baldridge did not, we must
construe the patently ambiguous contract language
against her. Id.BALDRIDGE v. GPO 7
In sum, we agree that the IFB unambiguously called
for delustered laminate film, and so we affirm the Board’s
grant of summary judgment. 2 Furthermore, and in any
event, we would construe the contract against her even if
the language was ambiguous because such an ambiguity
would be patent. Accordingly, we affirm.
AFFIRMED
COSTS
No costs.
2 For this reason, we need not reach the secondary
question of whether Ms. Baldridge’s discovery requests
were appropriately denied. Evidence that is extrinsic to
the contract is inadmissible when the contract itself is
unambiguous. See Barron Bancshares, 366 F.3d at 1375(“If the terms of a contract are clear and unambiguous . . .
extrinsic evidence is inadmissible to interpret them.”).