BOARD OF CONTRACT APPEALS
U.S. GOVERNMENT PRINTING OFFICE
In the Matter of )
)
the Appeal of )
)
V.N. PRODUCTS, INC. ) Docket No. GPOBCA 10-00
)
Jacket 547-076 )
Purchase Order G2337 )
For the Appellant: Neil Goldberger, President, V.N. Products, Inc.,
Foothill Ranch, California.
For the Respondent: Roy E. Potter, Esq., Associate General Counsel,
U.S. Government Printing Office, Washington, DC.
Before KERRY L. MILLER, Administrative Judge.
DECISION
V.N. Products, Inc. (VNP) appeals a Contracting Officer's decision
rejecting a shipment of goods due to improper packaging. Appellant
contends that the Contracting Officer misinterpreted the contract's
packaging specifications. For the reasons that follow, Respondent's
motion for summary judgment is granted; Appellant's motion for summary
judgment is denied and the appeal is denied.
FINDINGS OF FACT
1. On April 10, 2000, the U.S. Government Printing Office (GPO)
Chicago Regional Printing Procurement Office (RPPO), after following
standard sealed bid procurement procedures, awarded a firm, fixed-
price contract to Appellant for the production of 224,121 computer
mouse pads for the U.S. Army. Rule 4 File, Tabs, C, D. The mouse
pads were promotional items to be used by Army recruiters.
2. The contract specifications required Appellant to print a
Government-furnished design on the pad's top polyester cloth laminate
using a sublimation printing process. Rule 4 File, Tab B at 2, 3.
3. Under the terms of the contract, as modified by the Purchase
Order, the contractor was to deliver 91 mouse pads to five
destinations.1 Rule 4 File, Tab B at 6; Tab C. Ten mouse pads were
to be mailed to each of the Army's 6,690 recruiters. Rule 4 File, Tab
B at 7. Then, Appellant was required to make five large shipments of
mouse pads to Fort Knox, Kentucky. The shipments were to be spaced
approximately three weeks apart. The first four shipments were for
30,000 mouse pads each and the last shipment was for 36,900 mouse
pads. Rule 4 File, Tab B at 6, 8.
4. The contract also contained the following provisions:
PACKAGING, LABELING, AND MARKING: Noncompliance with the packing and
marking instructions will be cause for the Government to take
corrective action in accordance with GPO Pub. 310.2. Label in
accordance with GPO Contract Terms.
Shrink film wrap in units of 5 mouse pads per wrap. Shrink wrap
process must not damage the pads. If necessary to protect the image or
pad, slip sheet between pads. Pack suitably in shipping containers.
Use only new corrugated or solid fiberboard containers with a minimum
bursting strength of 275 psi. Containers must not exceed 45 lbs when
fully packed.
Reproduce shipping container labels from furnished repro, fill in
appropriate blanks, and attach to each container. All containers must
be marked with the jacket number, APA number title (RPI 986, eArmy
Mouse Pad (APA00-664)), total quantity, quantity per unit (5), and
number of units (number of shrink wraps of 5).
Additionally, mailed copies must have a mailing label applied to each
mailed container. Contractor must reproduce all additional labels
required at their own expense.
PALLETIZING: Contractor will be required to furnish pallets for bulk
shipments to Fort Knox, KY, in shipping containers, when the
containers fill two or more layers on the pallet. As an exception to
GPO Contract Terms (GPO Pub. 310.2), the Government may choose to
correct packaging and palletizing deficiencies without prior notice to
the contractor and charge all costs to the contractor. Contractor must
NOT palletize any shipments other than those to Fort Knox, KY.
(Emphasis in original). Rule 4 File, Tab B at 4-5. In addition, GPO
Contract Terms, incorporated into Jacket 547-076 by reference,
contains the following provision:
Palletizing.
(a) When indicated in specifications, the contractor will be required
to furnish pallets for bulk shipments, in shipping containers, when
the containers fill two layers or more on the pallet.
Supplemental Specification 8, GPO Contract Terms, GPO Publication
310.2 (Rev. 5-99).
5. The contract also contained a "Distribution" section that, inter
alia, explained the requirement that 10 mouse pads be mailed to each
of the Army's 6,690 recruiters:
The number of recruiters at each particular recruiting station is
handwritten on each of the 1,594 recruiting station labels. There are
a total of 6,690 recruiters. Mail/ship 10 mouse pads (2 shrinkfilm
wraps of 5 mouse pads per wrap) to each recruiter.
Rule 4 File, Tab B at 7.
6. The Government rejected Appellant's first shipment of 30,240 mouse
pads sent to Fort Knox because the pads were not shrink-wrapped. In a
final decision dated July 26, 2000, the Government cited to the above-
quoted contract requirement that the pads be delivered in shrink
wrapped units of five. Rule 4 File, Tab F.
7. Appellant argued that the cited contract provision did not apply
to "bulk shipments" to Fort Knox, such as the one rejected by the
Government. Nonetheless, Appellant picked up the rejected mouse pads
and re-packaged them in accordance with the Government's
interpretation of the contract.
8. By letter dated August 5, 2000, Appellant challenged the
Government's interpretation of the packaging specifications with a
timely appeal to the GPO Board of Contract Appeals (GPOBCA).
Appellant argued:
It is our claim that the GPO's specifications regarding the packaging
on this [contract] were misleading in two respects; (1) the manner in
which they were written implied that the specs called for two distinct
types of shipments, a "MAIL/SHIP" portion, and a "BULK SHIP" portion,
and (2) the use of the term "BULK SHIPMENT" in the "Palletizing"
section, without any mention of shrinkfilm wrap.
It is our position that the specs misled the reader by separating
discussion of "mailed copies", under the "Packaging "section, versus
discussion of "bulk shipments", which is mentioned solely in the
"Palletizing" section. It expressly states "Mail/ship 10 mouse pads
(2 shrinkfilm wraps of 5 mouse pads per wrap) to each recruiter", but
does not similarly specify such a requirement along with where they
discuss the "BULK SHIPMENT" portion.
Secondly, it is commonly understood in our industry that whenever
"BULK" shipments are called for, it means that no special packaging is
required. Under General Terms and Conditions of the factory catalog,
in the packaging section (inside back cover), it expressly states the
following:
"Normal packaging is bulk (shrink-wrapping, polybags, tubes. .. are
available... see page 50-51 for details... Call factory to discuss."
Therefore, due to the misleading character of the GPO specs, and their
non-qualification of the term of art "BULK SHIPMENT", we now have
additional shrink-wrap expenses for all the bulk shipments, for which
we seek only fair and just compensation.
Letter from V.N. Products, Inc. to GPO Board of Contract Appeals,
dated August 5, 2000.
9. Appellant's subcontractor sought $15,111 to compensate it for the
cost of picking up, repackaging and re-delivering the rejected 30,00
pad shipment, as well as the cost of repackaging 30,000 mouse pads not
yet shipped, plus the cost of shrink-wrapping the remaining 96,900
mouse pads. Letter from XJP Corp. to V.N. Products, Inc., dated
September 5, 2000.
DISCUSSION
This case is before the Board on Appellant's Motion for Summary
Judgment and Respondent's Cross-Motion for Summary Judgment.
Appellant argues it is entitled to summary judgment as a matter of law
because the Government misinterpreted the contract's packaging
specifications and imposed a requirement to shrink-wrap all finished
products. Respondent argues that it is entitled to judgment in its
favor because the contract unequivocally required Appellant as a
condition of performance to shrink-wrap the finished products for
shipment and delivery to Government installations. Given the
undisputed facts in this case, Respondent is entitled to summary
judgment in its favor.
Summary Judgment Standard
In deciding summary judgment motions, the Board is guided by Rule 56
of the Federal Rules of Civil Procedure. See The George Marr Co.,
GPOBCA No. 31-94, (April 23, 1996), 1996 GPOBCA LEXIS 43, 1996 WL
273662, slip op. at 35. Accord, Christie-Willamette, NASA BCA No.
283-4, 87-3 BCA ¶ 19,981 (citing Astro Dynamics, Inc., NASA BCA No.
476-1, 77-1 BCA ¶ 12,230); Automated Services, Inc., EBCA Nos.
386-3-87, 391-5-87, 87-3 BCA ¶ 20,157. Under Rule 56, courts are
instructed to grant a motion for summary judgment if the pleadings and
supporting affidavits and other submissions "show that there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). See
also, GPOBCA Rule 35(g), GPO Instruction 110.12A, Oct. 25, 1999.
Thus, the principal judicial inquiry required by Rule 56 is whether a
genuine issue of material fact exists. See The George Marr Co.,
supra, slip op. at 35-36; RBP Chemical Corp., GPOBCA No. 4-91 (Jan.
23, 1992), 1992 GPOBCA LEXIS 16, 1992 WL 487876, slip op. at 22.
Accord, John's Janitorial Services, Inc., ASBCA No. 34234, 90-3 BCA ¶
22,973 (citing, General Dynamics Corporation, ASBCA Nos. 32660, 32661,
89-2 BCA ¶ 21,851); Ite, Inc., NASA BCA No. 1086-6, 88-1 BCA ¶ 20,269.
A material fact is one that will make a difference in the outcome of
the case. McDonnell Douglas Services, Inc., ASBCA No. 45556, 95-1 BCA
¶ 27,333 at 136,229 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242 (1986)). Stated otherwise, on a motion for summary judgment, a
court cannot try issues of fact; it can only determine whether there
are issues to be tried. See IBM Poughkeepsie Employees Federal Credit
Union v. Cumis Insurance Society, Inc., 590 F. Supp. 769, 771
(S.D.N.Y. 1984) (citing Schering Corp. v. Home Insurance Co., 712 F.2d
4, 9 (2d Cir. 1983)). If no triable issues exist, the rule permits
the immediate entry of summary judgment. See, e.g., Reingold v.
Deloitte, Haskins and Sells, 599 F. Supp. 1241, 1261 (S.D.N.Y. 1984);
United States v. ACB Sales and Service, Inc., 590 F. Supp. 561 (D.
Ariz. 1984). Indeed, the United States Supreme Court has stated that
summary judgment is mandatory in the absence of a genuine issue of any
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986).
The burden is on the party moving for summary judgment to demonstrate
that there is no genuine issue as to any material fact, and that it is
entitled to judgment as a matter of law. See Celotex Corp. v.
Catrett, supra, 477 U.S. at 322-23; Adickes v. S. H. Kress & Co., 398
U.S. 144, 157 (1970). That burden is an affirmative one, and is not
met merely by disproving the unsupported claims of its opponent. See
Celotex Corp. v. Catrett, supra, 477 U.S. at 323. On the other hand,
while the nonmoving party also has an evidentiary burden, it is not a
heavy one; it is simply required to go beyond allegations in the
pleadings and designate specific facts in the record or by affidavits
to show there is a genuine issue to be heard. See, e.g., McDonnell v.
Flaharty, 636 F.2d 184 (7th Cir. 1980); United States v. Kates, 419 F.
Supp. 846 (D. Pa. 1976); Upper West Fork River Watershed Association
v. Corps of Engineers, 414 F. Supp. 908 (D. W.Va. 1976), aff'd 556
F.2d 576 (4th Cir. 1977), cert. denied 434 U.S. 1010 (1978). See
generally, Vanier Graphics, Inc., GPOBCA No. 12-92 (May 17, 1994),
1994 GPOBCA LEXIS 39, 1994 WL 275102, slip op. at 32-38; RBP Chemical
Corp., supra, slip op. at 17-26. The Federal summary judgment rule
provides: "[A]n adverse party may not rest upon the mere allegations
or denials of his pleadings, but his response, by affidavits or as
otherwise provided in this rule, must set forth specific facts showing
that there is a genuine issue for trial. If he does not so respond,
summary judgment, if appropriate, shall be entered against him." FED.
R. CIV. P. 56(e). See Celotex Corp. v. Catrett, supra, 477 U.S. at
324; First National Bank of Arizona v. Cities Service Co., 391 U.S.
253, 289 (1968); Mingus Constructors, Inc. v. United States, 812 F.2d
1387, 1390-91 (Fed. Cir. 1987). See also, Do-Well Machine Shop, Inc.,
ASBCA No. 34898, 89-1 BCA ¶ 21,491, at 108,281; Ite Inc., supra, 88-1
BCA at 102,595.
Contract interpretation is a matter of law and, as such, is amenable
to disposition on summary judgment. See Textron Defense Sys. v.
Widnall, 143 F.3d 1465, 1468 (Fed. Cir. 1998); Dalton v. Cessna
Aircraft Co., 98 F.3d 1298, 1305 (Fed. Cir. 1996); ECC Intern. Corp.
v. United States, 43 Fed. Cl. 359, 365 (1999).
Decision on Summary Judgment
In this appeal the Board is presented with two very different
interpretations of the same contract provisions. Such a situation is
not unusual in litigation and does not inevitably lead to the
conclusion that the contract is ambiguous. To establish an ambiguity
both contract interpretations must fall within a zone of
reasonableness. Metric Constructions, Inc. v. National Aeronautics
and Space Administration, 169 F.3d 747, 751 (Fed. Cir. 1999). The
Board's primary task is to apply well-established rules of contract
interpretation to ascertain the meaning and legal consequences of the
disputed contract provisions.
The purpose of any rule of contract interpretation is to carry out the
intent of the parties, Hegeman-Harris & Co., 194 Ct. Cl. 574, 440 F.2d
1009 (1971); and to give effect to the "spirit and purpose" of the
agreement. Julius Goldman's Egg City v. United States, 697 F.2d 1051
(Fed. Cir. 1983); Thanet Corp v. United States, 591 F.2d 629 (Ct. Cl.
1979). The Board must first seek to resolve a contract interpretation
dispute by trying to determine the mutual intent of the parties as
manifested in the contract itself. IBI Security Services, Inc. v.
United States, ASBCA No. 3492, 88-1 BCA ¶ 20,364; Coastal Dry Dock &
Repair Corp., ASBCA No. 31894, 87-1 BCA ¶ 19,618. The test for
ascertaining intent is an objective one; i.e., the question is what
would a reasonable contractor have understood, not what did the
drafter or the bidder subjectively intend. Corbetta Construction Co.
v. United States, 198 Ct. Cl. 712, 461 F.2d 1330 (1972). See also
Salem Engineering and Construction Corp. v. United States, 2 Cl. Ct.
803, 806 (1983). The provisions of the contract itself should provide
the evidence of the objective intent of the parties. In
interpreting a contract, the Board's examination should begin with the
plain language used in the contract. Textron Defense Sys., 143 F.3d
1465, 1469 (Fed. Cir. 1998); Gould, Inc. v. United States, 935 F.2d
1271, 1274 (Fed. Cir. 1991); Craft Mach. Works Inc. v. United States,
926 F.2d 1110, 1113 (Fed. Cir. 1991).
The specific provisions of Jacket 547-076 that are in question are as
follows:
PACKAGING, LABELING, AND MARKING: Noncompliance with the packing and
marking instructions will be cause for the Government to take
corrective action in accordance with GPO Pub. 310.2. Label in
accordance with GPO Contract Terms.
Shrink film wrap in units of 5 mouse pads per wrap. Shrink wrap
process must not damage the pads. If necessary to protect the image
or pad, slip sheet between pads. Pack suitably in shipping
containers. Use only new corrugated or solid fiberboard containers
with a minimum bursting strength of 275 psi. Containers must not
exceed 45 lbs when fully packed.
Reproduce shipping container labels from furnished repro, fill in
appropriate blanks, and attach to each container. All containers must
be marked with the jacket number, APA number title (RPI 986, eArmy
Mouse Pad (APA00-664)), total quantity, quantity per unit (5), and
number of units (number of shrink wraps of 5).
Additionally, mailed copies must have a mailing label applied to each
mailed container. Contractor must reproduce all additional labels
required at their own expense.
PALLETIZING: Contractor will be required to furnish pallets for bulk
shipments to Fort Knox, KY, in shipping containers, when the
containers fill two or more layers on the pallet. As an exception to
GPO Contract Terms (GPO Pub. 310.2), the Government may choose to
correct packaging and palletizing deficiencies without prior notice to
the contractor and charge all costs to the contractor. Contractor must
NOT palletize any shipments other than those to Fort Knox, KY.
(Emphasis in original). Rule 4 File, Tab B at 4-5. In addition, the
contract also contained a "Distribution" section that, inter alia,
required 10 mouse pads be mailed to each of the Army's 6,690
recruiters:
The number of recruiters at each particular recruiting station is
handwritten on each of the 1,594 recruiting station labels. There are
a total of 6,690 recruiters. Mail/ship 10 mouse pads (2 shrinkfilm
wraps of 5 mouse pads per wrap) to each recruiter.
Rule 4 File, Tab B at 7.
Appellant's argument rests on two interrelated premises. First,
Appellant asserts that the above-quoted contract provisions establish
two distinct categories of mouse pads, each having it's own packaging
requirement. In Appellant's view the first category consists of those
mouse pads to be shipped in quantities of 10 to individual Army
recruiters located throughout the country. Appellant agrees the
contract requires this category of mouse pads to be shrink-wrapped in
quantities of five prior to shipment. However, Appellant claims the
contract does not require the remaining five "bulk shipments" (of
30,00 to 36,850 pads per shipment) to the Army's warehouse in Fort
Knox, Kentucky to be shrink-wrapped. Appellant's second premise is
that when the Government used the words "bulk shipments" in the
contract's "Palletizing" subsection it was using a term of art.
Appellant claims "the use of the term 'bulk' is always interpreted to
mean 'no special packaging required'" and therefore, no shrink-
wrapping was required. The Board concludes that neither premise is
supportable.
A. Did the Contract Establish Two Categories of Mouse Pads?
Appellant claims that the contract called for two categories of mouse
pads, one category consists of mouse pads boxed and shrink-wrapped in
units of five and the other category consists of mouse pads boxed, but
not shrink-wrapped. In Appellant's view the provision "Mail/ship 10
mouse pads (2 shrinkfilm wraps of 5 mouse pads per wrap) to each
recruiter" in the contract's "Distribution" section, coupled with the
lack of a comparable parenthetical direction for the "bulk shipments"
to Fort Knox mentioned in the "Palletizing" section, means that the
shrink-wrapping requirement is limited to the recruiter shipments and
excludes the "bulk shipments." Appellant's argument ignores the
separate shrink-wrap requirement contained in the contract's
"Packaging" section.
The contract in the instant appeal sets out a shrink-wrap requirement
in a contract provision labeled "PACKAGING, LABELING, AND MARKING"
(hereinafter "Packaging"). The requirement to shrink wrap mouse pads
contained in the "Packaging" provision is unequivocal. The contractor
is required to "[s]hrink film wrap in units of 5 mouse pads per wrap."
Rule 4 File, Tab B at 4. The shrink-wrapped units are required to be
packed in corrugated or solid fiberboard shipping containers. Id.
Each container is required to be marked with a shipping container
label listing the "total quantity, quantity per unit (5), and number
of units (number of shrink wraps of 5)." Rule 4 File, Tab B at 5.
The "Packaging" specification makes no distinction between those mouse
pads destined for Ft. Knox and those mouse pads to be delivered to
other locations.
In a separate contract provision labeled "Palletizing" the contractor
was required to furnish pallets to hold the shipping containers if the
boxes filled two or more layers on a pallet. This "Palletizing"
provision was limited by its provisions to the 5 large shipments to
Fort Knox. Rule 4 File, Tab B at 5. The contractor was further
admonished not to use pallets for any of the other shipments. Id.
Although the use of shipping containers is mentioned in each section,
in the Board's view, the "Palletizing" section has no direct
connection with the "Packaging" section of the contract. It was
unreasonable for Appellant to conclude that a contract provision
informing a contractor when it is required to use a shipping pallet,
would negate the contract's "Packaging" specification and the shrink-
wrap requirement found in that section of the contract. This is
especially true since the Government required each shipping container
to be labeled by the contractor to list the "total quantity, quantity
per unit (5), and number of units (number of shrink wraps of 5)."
Thus the specifications contemplated that each shipping container used
to fulfill the contract would contain shrink-wrapped mouse pads.
It is equally unreasonable for the contractor to conclude, based on
the parenthetical explanation found in the phrase "Mail/ship 10 mouse
pads (2 shrinkfilm wraps of 5 mouse pads per wrap) to each recruiter"
that no other mouse pads were required to be shrink-wrapped. The five
shipments to Fort Knox totaled 156,900 or approximately 70% of the
contracted-for 224,121 mouse pads. Although the Government overstated
the obvious when it explained that two units of five shrink-wrapped
mouse pads were needed to make up a shipment of 10 mouse pads, there
is nothing in this provision that would lead a contractor to
reasonably conclude that the specific shrink-wrapping requirements
were to be ignored for the remaining 70% of the mouse pads.
Thus, contrary to Appellant's contention that the structure of the
contract created two classes of mouse pads with a bifurcated shrink-
wrapping requirement, the Board, reading the contract as a whole and
giving effect to all provisions of the contract, finds a cohesive
series of contract provisions that create an internally consistent
shrink-wrapping requirement applicable to all mouse pads delivered
under the contract.
The most basic principle of contract construction is that the document
should be interpreted as a whole. See Hol-Gar Manufacturing Corp. v.
United States, 169 Ct. Cl. 384, 388, 351 F.2d 972, 975 (1965); The
George Marr Co., GPOBCA No. 31-94, 1996 GPOBCA LEXIS 43, 1996 WL
273662 (April 23, 1996) slip op. at 43. A court or board must give
reasonable meaning to all parts of the contract and not render
portions of the contract meaningless. See McAbee Constr., Inc. v.
United States, 97 F.3d 1431, 1424 (Fed. Cir. 1996), reh'g denied No.
96-5004 (Fed. Cir.) March 13, 1996; Fortec Constr. v. United States,
760 F.2d 1288, 1292 (Fed. Cir. 1985) (citing United States v. Johnston
Controls, Inc., 713 F.2d 1541, 1555 (Fed. Cir. 1983)). In doing so
the Board must also avoid surplusage or conflict. Granite Const. Co.
v. United States, 962 F.2d 998, 1003 (Fed. Cir. 1992). See also
Input/Output Technology, Inc. v. United States, 44 Fed. Cl. 65, 70
(1999). Hence, all provisions of a contract should be given effect
and no provision is to be rendered meaningless. See The George Marr
Co., supra, slip op. at 43-44; General Business Forms, Inc., GPOBCA
No. 2-84, 1985 GPOBCA LEXIS 21, 1985 WL 154846 (Dec. 3, 1985), slip
op. at 16 (citing, Raytheon Co. v. United States, 2 Cl. Ct. 763
(1983)). See also Pacificorp Capital, Inc. v. United States, 25 Cl.
Ct. 707, 716 (1992), aff'd 988 F.2d 130 (Fed. Cir. 1993); Avedon Corp.
v. United States, 15 Cl. Ct. 771, 776 (1988).
An interpretation which gives a reasonable meaning to all parts of a
contract will be preferred to one which leaves a portion of it
"useless, inexplicable, inoperative, void, insignificant, meaningless,
superfluous, or achieves a weird and whimsical result." Gould, Inc.
v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991), quoting
Arizona v. United States, 216 Ct. Cl. 221, 235-36, 575 F.2d 855, 863
(1978). See also ITT Arctic Service, Inc. v. United States, 207 Ct.
Cl. 743, 524 F.2d 680, 684 (1975) (contract interpretation should be
"without twisted or strained out of context [and without] regard to
the subjective unexpressed intent of one of the parties. . ."). An
interpretation that effectively deletes a major portion of the
contract cannot and will not be sanctioned. See Avedon Corp. v.
United States, supra, 15 Cl. Ct. at 776 (citing W.G. Cornell Co. v.
United States, 179 Ct. Cl. 651, 666-67, 376 F.2d 299, 309 (1967)).
When the instant contract is read as a whole, Appellant's argument
distorts the plain meaning of the specifications and eviscerates the
specific shrink-wrap directive in the "Packaging" section. Such an
unreasonable interpretation also ignores the explicit requirement that
the labels for the shipping containers used for the palletized "bulk
shipment" pads must list the "quantity per unit (5) and number of
units (number of shrink wraps of 5)." See, Rule 4 File, Tab B at 5.
B. Did the Government's Use of the Word "Bulk" Negate the Shrink-
Wrap Requirement for the Shipments to Fort Knox?
Appellant's second argument is that the word "bulk" in "both its
common usage and as a term of art" means "no special packaging."
Appellant's Cross-Motion for Summary Judgment and in Opposition to
Respondent's Motion for Summary Judgment at 3. Contrary to
Appellant's blanket assertion regarding this word, the Board has found
that there is no "Lawyer's Paradise" where "all words have a fixed,
precisely ascertained meaning." See JAMES B. THAYER, A PRELIMINARY
TREATISE ON EVIDENCE AT THE COMMON LAW 390 (1898) at 428-29.
It has been observed that "[a] word generally has several meanings,
even in the dictionary." Oliver Wendel Holmes, The Theory of Legal
Interpretation, 12 Harv. L. Rev. 417 (1899). Appellant's contention
about the word's meaning in common usage notwithstanding, the
dictionaries consulted by the Board provide several meanings. The
most common definitions of "bulk" are "a large mass" or "a large
quantity." See THE OXFORD AMERICAN DICTIONARY AND LANGUAGE GUIDE 121
(1999); see also, 1 OXFORD ENGLISH DICTIONARY 1164-65 (1933). Another
dictionary defines "bulk" as "magnitude in three dimensions." See THE
RANDOM HOUSE COLLEGE DICTIONARY REVISED EDITION 178 (1979). Another
common definition is "the greatest part or number." See THE OXFORD
AMERICAN DICTIONARY AND LANGUAGE GUIDE 121 (1999). Thus, at least as
to the most common definitions of the word "bulk," modern dictionaries
do not support Appellant's position regarding the word's common usage.
In construing a contract, the language of the instrument is given its
ordinary and commonly accepted meaning, unless it is shown that the
parties intended otherwise. Hol-Gar Mfg. Corp. v. United States, 169
Ct. Cl. 384, 351 F.2d 972, 976 (1965). Where the provisions of a
contract are phrased in clear and unambiguous language, "the words of
those provisions must be given their plain and ordinary meaning by the
court in defining the rights and obligations of the parties. . . ."
See The George Hyman Construction Company v. United States, supra, 832
F.2d at 579 (quoting Elden v. United States, 617 F.2d 254, 260-61 (Ct.
Cl. 1980); accord American Science and Engineering, Inc. v. United
States, 663 F.2d 82, 88 (Ct. Cl. 1981)); Julius Goldman's Egg City v.
United States, 697 F.2d 1051, 1057 (Fed. Cir. 1982), cert. denied, 464
U.S. 814, 104 S. Ct. 68, 78 L.Ed.2d 83 (1983).
In construing a contract, technical terms are given their technical
meaning. See Coastal Drydock and Repair Corp., ASBCA No. 31894, 87-1
BCA ¶ 19,618; Industrial Finishers, Inc., ASBCA No. 6537, 61-1 BCA ¶
3,091. Likewise, terms special to Government contracts will be given
their technical meanings. See General Builders Supply Co. v. United
States, 187 Ct. Cl. 477, 409 F.2d 246 (1969) (meaning of "equitable
adjustment"). "Outside evidence may not be brought in to create an
ambiguity where the language is clear." HRE, Inc. v. United States,
142 F.3d 1274, 1276 (Fed. Cir. 1998) (quoting City of Tacoma v. United
States, 31 F.3d 1130, 1134 (Fed. Cir. 1994). "Neither a contractor's
belief nor contrary customary practice . . . can make an unambiguous
contract provision ambiguous, or justify a departure from its terms.:
Hoffman Constr. Co. of Ore. v. United States, 40 Fed. Cl. 184, 192
(1998) (quoting R.B. Wright Constr. Co. v. United States, 919 F.2d
1569, 1572 (Fed. Cir. 1990). While evidence of trade practice and
custom can play a role in contract interpretation by establishing the
context and intention of the contracting parties. Evidence of trade
practice does not trump other cannons of contract interpretation.
Metric Constructions, 169 F.3d 747, 752-3.
Appellant attempts to support its position that "bulk" is a term of
art with four examples culled from "Internet sources." Appellant V.N.
Product Inc.'s Cross-Motion for Summary Judgment and in Opposition to
Respondent's Motion for Summary Judgment at 3. However, since none of
the examples provided2 were of the disputed term "bulk shipments" they
are irrelevant to the issues in this appeal. Appellant also advises
that "among [the] definitions of 'bulk' in the Random House College
Dictionary are: "loose goods or cargo, not in packages, boxes, bags,
etc." and "unpackaged." Id. While it is true that "loose goods or
cargo, not in packages, boxes, bags, etc." is one of the definitions
in that dictionary, the quoted definition is the third one listed.
The two most common definitions listed in that dictionary are
"magnitude in three dimensions" and "the greater part; the main mass
or body." See, RANDOM HOUSE COLLEGE DICTIONARY REVISED ED. 178
(1975). In addition, Appellant fails to disclose that the definition
"unpackaged" quoted by Appellant from the Random House College
Dictionary is not a definition of the word "bulk" but of the phrase
"in bulk." Id. While a phrase such as "in bulk" can mean either "in
large quantities" or "loose; not packaged"3 and the term "bulk cargo"
can mean "a heap or pile"4 these phrases were not used in the instant
contract.
Finally, Appellant cites to the catalogue of its subcontractor. Once
again, the example cited is not of the disputed term "bulk shipment."
Rather Appellant's subcontractor's catalogue simply states that "[n]
ormal packaging is bulk." Thus, Appellant' proffered evidence fails
to prove trade usage or custom.
In construing a disputed word, the Board must also take into
consideration the context in which the word is used. The only
instance in the contract specifications where the term "bulk" is used
is in the previously quoted and discussed "Palletizing" section. In
addition, GPO Contract Terms, incorporated into the instant contract
by reference, contains the following provision:
Palletizing.
(a) When indicated in specifications, the contractor will be required
to furnish pallets for bulk shipments, in shipping containers, when
the containers fill two layers or more on the pallet.
Supplemental Specification 8, GPO Contract Terms, GPO Publication
310.2 (Rev. 5-99). In both provisions the word "bulk" modifies the
word "shipments" not the words "pack", "cargo" or "packaging." As
Respondent correctly observes, the logical place in the contract to
find packaging instructions is in the "Packaging" section of the
contract, not the "Palletizing" section.
The Board concludes that the specification's reference to "bulk
shipments" is not an exception to the shrink-wrap packaging
requirement but a term used to denote certain large shipments. Both
the specifications and the Supplemental Specification in GPO Contract
Terms explain that bulk shipments are those shipments where the number
of containers shipped exceeds two layers on a pallet. Thus, "bulk" in
this contract provision has the same meaning as "large" and does not
modify the shrink-wrap requirement.
CONCLUSION
Having considered all of Appellant's arguments, whether or not
expressly mentioned, the Board concludes that the Respondent is
entitled to summary judgment as a matter of law. Accordingly,
Respondent's Cross-Motion for Summary Judgment is granted and
Appellant's Motion for Summary Judgment is denied. The appeal is
denied.
April 25, 2002
KERRY L. MILLER
Administrative Judge
__________
1 These destinations were: the Army Recruiting Headquarters (75 pads),
Young & Rubican Army Group (5 pads), Army Headquarters (5 pads), HQ
TRADOC (1 pad), and OVSD(P&R) OASD(FMD)/AP (5 pads). Rule 4 File, Tab
B at 6.
2 The examples provided were for: "bulk pack" (2 examples), "bulk
freight" and "bulk cargo." Appellant V.N. Product Inc.'s Cross-Motion
for Summary Judgment and in Opposition to Respondent's Motion for
Summary Judgment at 3.
3 THE NEW OXFORD AMERICAN DICTIONARY 226 (2001).
4 THE OXFORD ENGLISH DICTIONARY 1165 (1933).