Wsp USA Solutions Inc. v. Secretary of the Army

N OTE : This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WSP USA SOLUTIONS INC.,
Appellant
v.
SECRETARY OF THE ARMY,
Appellee
______________________
2023-1256
______________________
Appeal from the Armed Services Board of Contract Ap-
peals in No. 62674, Administrative Judge J. Reid Prouty,
Administrative Judge Richard Shackleford, Administra-
tive Judge Kenneth David Woodrow.
______________________
Decided: February 21, 2025
______________________
SCOTT ARNOLD, Blank Rome LLP, Washington, DC, ar-
gued for appellant. Also represented by DAVID LEE
B ODNER , STEPHANIE HARDEN, DAVID MICHAEL NADLER ,
A DAM SETH P ROUJANSKY.
PATRICK A NGULO, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for appellee. Also represented by B RIAN
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 2
M. B OYNTON, PATRICIA M. MCC ARTHY, C ORINNE A NNE
N IOSI .
______________________
Before P ROST, TARANTO, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
WSP USA Solutions Inc., a private contractor, appeals
the final decision of the Armed Services Board of Contract
Appeals that WSP was properly compensated for its ser-
vices rendered pursuant to a contract with the United
States Army Corps of Engineers. WSP submitted a certi-
fied claim under the Contract Disputes Act, 41 U.S.C.
§§ 7101–09, alleging costs it was owed by the government
because of incorrect pricing for services performed under
three specific task orders. The Contracting Officer deter-
mined the services were correctly priced and denied the
claim. WSP appealed the Contracting Officer’s final deci-
sion, and the Board concluded the underlying contract un-
ambiguously provided that pricing for the contested task
orders was determined by the time the orders were first
issued and denied the appeal on this basis. Because we con-
clude the Board did not properly consider the contract in
its entirety as modified by the later-issued task orders in
evaluating each of the parties’ purported unambiguous in-
terpretations of the contractual pricing scheme and reject
both parties’ arguments that the pricing scheme is unam-
biguous, we vacate the Board’s finding that the contract
was unambiguous and remand for proper investigation of
the contract terms, including modifications made to task
orders issued pursuant the contract.
I
The pricing dispute underlying this appeal turns on a
question of contract interpretation. The question raised on
appeal is whether the fixed price for work performed under
a task order is established by the date the task order is is-
sued or by the date on which the work is actually performed
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 3
under the task order when such work extends beyond its
initial expected period of performance and into a later con-
tract year. Before addressing the merits, we will first de-
scribe the overall contract, the provision at issue, and the
underlying series of events relevant to this dispute.
A
On October 22, 2014, the United States Army Corps of
Engineers awarded requirements contract No. W911WN-
15-D-0001 to WSP USA Solutions Inc.1 Under the contract,
WSP would provide temporary emergency power services
required for federally declared emergencies. Specifically,
WSP would provide emergency support to the Federal
Emergency Management Agency (FEMA) Region IX (Ari-
zona, California, and Nevada), Region X (Idaho, Oregon,
and Washington), and certain areas outside the continen-
tal United States (Puerto Rico, US Virgin Islands, Alaska,
Hawaii, Guam, and American Samoa). J.A. 10016. The
1 The Board’s final decision described the contract as
“an indefinite quantity indefinite delivery” (IDIQ) contract
instead of an indefinite delivery requirements contract.
J.A. 2. While the contract explicitly includes the Require-
ments Clause at subsection 52.216-21 of the Federal Acqui-
sition Regulation, see J.A. 10058–59, it does not include the
IDIQ Clause at subsection 52.216-22 of the Federal Acqui-
sition Regulation. To the extent the record includes refer-
ences to an indefinite delivery indefinite quantity
requirements contract, we note that subsection 16.501-2(a)
of the Federal Acquisition Regulation specifically defines
indefinite-quantity contracts and requirements contracts
as two separate and distinct “types of indefinite-delivery
contracts.” As such, we find substantial evidence supports
a finding that the contract was a requirements contract
and not an indefinite quantity contract.
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 4
initial contract was for $95,000,000 and had a one-year
base period and four one-year option periods. See
J.A. 10001–11.
The contract is divided into three parts. See J.A. 10001.
Part I of the contract contains the Schedule, which consists
of Sections A–C and E–G. J.A. 10001–55. Relevant here is
Section B (Supplies or Services and Prices/Costs); Sec-
tion C (Description/ Specs/ Work Statement); and Section F
(Deliveries or Performance). Part II of the contract consists
of Section I (Contract Clauses), which contains the specific
Federal Acquisition Regulation (FAR) clauses that are in-
corporated into the contract by either reference or full text.
J.A. 10056–78. Two FAR clauses are relevant here:
FAR 52.216-21 (Requirements) subsection (f) and 52.216-
21 (Ordering). Part III of the contract is Section J (List of
Documents, Exhibits and Other Attachments), which con-
tains additional documents applicable to the contract.
J.A. 10079–84. Relevant to this appeal, Section J includes
a Rate Schedule document with pricing details.
Section B outlines the specific “Supplies or Services
and Prices” to be provided under the contract. The con-
tract’s required supplies and services are divided into two
basic categories: “ACI[2] Emergency Power”3 and
2 As defined in the contract’s Performance Work
Statement (PWS), an Advanced Contract Initiative (ACI)
is “[t]he process of having a contract in place prior to a dis-
aster to permit quick and immediate response.”
J.A. 10016–17.
3 The contract line-item numbers for ACI Emergency
Power cover the contractor’s provision of “all labor, trans-
portation, equipment, materials supervision, and required
internal logistic support to perform generator set activities
in support of [certain] FEMA regions . . . as stated in the
[PWS].” J.A. 10002.
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 5
“Readiness and Preparedness.”4 Section B structures the
contract around ten firm-fixed price (FFP) contract line-
item numbers (CLINs): two for the initial Base Year and
two each for the four exercisable option years (OY). See
J.A. 10002–11. CLINs 0001, 1001, 2001, 3001, and 4001
cover ACI Emergency Power for the Base Year and the four
option years, respectively. See J.A. 10002, 10004, 10006,
10008, 10010. CLINs 0002, 1002, 2002, 3002, and 4002
cover Readiness and Preparedness for the Base Year and
the four option years, respectively. See J.A. 10003, 10005,
10007, 10009, 10011. Section B also specifies the applicable
period of performance for each CLIN. “The period of perfor-
mance for the Base Year will be a period of one year from
the date of the contract award,” J.A. 10002, 10003, and
“[t]he period of performance for [each] option will be a pe-
riod of one year upon expiration of [the prior] year,”
J.A. 10004–11. The exact dates of the period of perfor-
mance for each CLIN are set forth in Section F of the con-
tract:
CLIN 0001 and 0002 (i.e., base year): Oct. 22,
2014–Oct. 21, 2015
CLIN 1001 and 1002 (i.e., OY 1): Oct. 22, 2015–
Oct. 21, 2016
CLIN 2001 and 2002 (i.e., OY 2): Oct. 22, 2016–
Oct. 21, 2017
4 The contract line-item numbers for Readiness and
Preparedness “cover[] the submission and updating of spe-
cific plans and reports, coordination with government
agencies on the movement of personnel and equipment
when necessary, and readiness activi[ti]es that will be de-
scribed in the task order scope of work and in accordance
with the [PWS] of the contract” and in support of certain
FEMA regions. J.A. 10003.
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 6
CLIN 3001 and 3002 (i.e., OY 3): Oct. 22, 2017–
Oct. 21, 2018
CLIN 4001 and 4002 (i.e., OY 4): Oct. 22, 2018–
Oct. 21, 2019
See J.A. 10051–52.
Section B of the contract further specifies pricing de-
tails for the each CLIN. Section B specifies both a Unit
Price and a Not to Exceed (NTE) amount for each FFP
CLIN. The NTE amount sets the ceiling for the maximum
cost of supplies or services that can be provided under a
given CLIN. The Unit Price and NTE amount for Readi-
ness and Preparedness was fixed at $15,000 for the Base
Year as well as each subsequent option year. See
J.A. 10003, 10005, 10007, 10009, 10011 (CLINs 0002–
4002). The Unit Price and NTE amount for ACI Emergency
Power for the Base Year is “$94,985,000 which is the total
maximum value of the contract.” J.A. 10002 (CLIN 0001).
Conversely, the Unit Price and NTE amount for ACI Emer-
gency Power for the subsequent option years is listed as $0
but provides that “[t]he total [NTE] amount will be the un-
expended amount remaining from the [prior] year minus
the $15,000.00 from” the corresponding Readiness and Pre-
paredness CLIN. See J.A. 10004, 10006, 10008, 10010
(CLINs 1001–4001). Each CLIN in Section B also states,
“THE CONTRACTOR SHALL PROVIDE PRICING IN
ACCORDANCE WITH THE NARRATIVE IN SECTION B
AND THE CORRESPONDING RATE SCHEDULE
INCLUDED AS ATTACHMENT 1, WHICH WILL BE
INCLUDED IN THE CONTRACT.” J.A. 10002–11.
The Section B includes a Rate Schedule Narrative that
identifies five specific categories of FFP line items: 1) Line
Item 0002 for Readiness and Preparedness; 2) Line Items
L01 to Lxx for Labor Rates; 3) Line Items E01 to Exx for
Equipment Rates; 4) Line Items ME01 to MExx for Mobili-
zation and Demobilization Equipment Costs; and 5) Line
Items P01 to P11 for Parts for Servicing Generators. See
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 7
J.A. 10011–13. The corresponding Rate Schedule, which is
included in Section J as an attachment to the contract, sets
forth the exact price for each of these specified FFP line
items based on the relevant contract year (e.g., Base Year,
OY1, OY2, etc.).5 See J.A. 10081–84.
Section C of the contract contains the Performance
Work Statement (PWS) which states the contract’s general
purpose and specifications and describes relevant contract
terms and provisions. See J.A. 10016. In addition to outlin-
ing “the basic Contractor requirements for 3 phases of
work”—“Mission Readiness, Mission Mobilization, and
Mission Execution . . . with the bulk of the work being per-
formed under the Mission Execution Phase”—the PWS also
details the procedures for furnishing supplies and services
under the contract. J.A. 10016, 10021. Specifically, the
PWS states “[a]ll Government directed phases of work
shall be accomplished . . . through the issuance of a Task
Order” and “[e]ach Task Order will be issued as a ‘Not to
Exceed’ dollar value.” J.A. 10021. The PWS defines a Task
Order as “[a] contract issued by a Contracting Officer that
provides legal authorization for [WSP] to perform work un-
der this contract.” J.A. 10021. In “instances where the Gov-
ernment will have [WSP] adjust the assets initially
deployed . . . [a] proposal . . . will be negotiated and incor-
porated into the resulting task order . . . [and a]ny addi-
tions in [WSP] assets (labor and/or equipment) must be
handled by modifications to the Task Order.” J.A. 10021.
Additionally, Section C of the contract prohibits WSP from
“exceed[ing] the [NTE] amount stated in the task order”
5 Unlike the other FFP line items, the price for Line
Item 0002, Readiness and Preparedness ($15,000), is set
forth in CLINs 0002–4002, and not the Rate Schedule. See
J.A. 10003, 10005, 10007, 10009, 10011.
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 8
and threatens demobilization unless the task order’s fund-
ing is increased. J.A. 10021.
Section I incorporates certain FAR clauses into the con-
tract. Relevant to this appeal are FAR 52.216-18 (Order-
ing) and FAR 52.216-21 (Requirements). See J.A. 10058–
59. The Ordering Clause provides details related to the fur-
nishing of supplies and services through the issuance of
task orders, and the Requirements Clause elaborates on
the details relating to the government’s ordering—and the
contractor’s delivery or performance—of the supplies and
services. The Requirements Clause also contains a subsec-
tion that outlines the parties’ “rights and obligations with
respect to” orders “issued during the effective period of this
contract and not completed within that period” (i.e., com-
pleted after the contract has expired). J.A. 10059;
FAR 52.216-21(f).
B
On October 22, 2014, USACE awarded WSP the
$94,985,500 requirements contract at issue here.
J.A. 10002. The contract was set to expire at the end of the
initial Base Year on October 21, 2015 “unless extended in
accordance with FAR Clause 52.217-9 ‘Option to Extend
the Term of the contract.’” J.A. 10058. This clause specifies
that “[t]he Government may extend the term of this con-
tract by written notice to the contractor within five days;
provided that the Government gives the contractor a pre-
liminary written notice of its intent to extend at least 60
days before the contract expires.” J.A. 10059. The clause
further states “[t]he total duration of this contract, includ-
ing the exercise of any options . . . cannot exceed five
years.” J.A. 10059–60. USACE exercised three of the four
available options to extend. On August 28, 2015, USACE
exercised the first option year (OY1), which began on Octo-
ber 22, 2015 and extended the contract’s expiration date to
October 21, 2016. J.A. 6. On September 14, 2016, the
USACE exercised the second option year (OY2), which
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 9
began on October 22, 2016 and extended the contract’s ex-
piration date to October 21, 2017. J.A. 7. On August 16,
2017, USACE exercised the third option year (OY3), which
began on October 22, 2017 and extended the contract’s ex-
piration date to October 21, 2018. J.A. 7.
On or about September 6, 2017—before the expiration
of the contract’s OY2 term and only a few weeks after
USACE exercised OY3—Hurricane Irma caused wide-
spread damage in the U.S. Virgin Islands (USVI) and
Puerto Rico. J.A. 7. Less than two weeks later, Hurricane
Maria made landfall as a Category 5 storm in the USVI and
as a Category 4 storm in Puerto Rico. Both hurricanes
caused extensive damage to the regions, resulting in the
destruction of electrical grids and total power loss. J.A. 7.
In response to these two emergency disasters, USACE
made multiple contract modifications. In a first set of mod-
ifications, USACE transferred more than $85,000,000 in
funds from OY3’s NTE ceiling (i.e., CLIN 3001) to OY2’s
NTE ceiling (i.e., CLIN 2001), see J.A. 10342, 10352, 10532,
10935. In a second set of simultaneous modifications,
USACE issued three task orders over sixteen days. The
first task order, TO W911WN17F3031 (TO 3031), was is-
sued on September 20, 2017, at a price of $444,854.24.
TO 3031 required WSP to provide emergency power ser-
vices in Puerto Rico through September 23, 2017.
J.A. 10345–47. The second task order,
TO W911WN17F3033 (TO 3033), was issued on Septem-
ber 25, 2017, at a price of $5,244,301.09. TO 3033 required
WSP to provide emergency power services in the USVI un-
til October 9, 2017. J.A. 10355–58. The third task order,
TO W911WN18F3001 (TO 3001), was issued on October 6,
2017, at a price of $300,000.00. TO 3001 required WSP to
provide additional emergency power services in Puerto
Rico until October 14, 2017. J.A. 10370–72. All three task
orders were issued during OY2 and were each assigned to
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 10
CLIN 2001 for ACI Emergency Power supplies and ser-
vices.6
Within days of their issuance, and continuing into
2018, the government modified each task order numerous
times “to increase funding and/or extend the mission.”7
J.A. 7. Each task order modification, even those occurring
after the expiration of OY2, stated that the additional
funds were allocated to CLIN 2001. WSP signed each of the
modifications.
On November 15, 2017, recognizing the unprecedented
“size, duration, devastation, and logistical challenges” pre-
sented by Hurricane Maria, USACE submitted a Justifica-
tion and Approval (J&A) which sought to increase the
ceiling amount of the contract “by $860,000,000 from
$95,000,000 to $955,000,000.” J.A. 11746–47. A Senior Pro-
curement Executive approved the requested modification
on November 21, 2017, pursuant to their authority under
10 U.S.C. § 2304(c)(2), as implemented by FAR 6.302-2
(Unusual and Compelling Urgency). J.A. 11756. Like the
task order modifications for additional funding, the modi-
fication pursuant the J&A allotted the additional
$860,000,000 in ceiling funds to CLIN 2001 while “[a]ll
other terms and conditions remained unchanged.”
6 Initially, TO 3001’s funding was incorrectly obli-
gated to CLIN 3001. The error was corrected, and the funds
were reassigned to CLIN 2001 on October 10, 2017 by a
unilateral modification, which WSP signed. See J.A. 7.
7 The record indicates that TO 3031 was modified 23
times between September 22, 2017 and September 18,
2018; TO 3033 was modified nine times between October 6,
2017 and February 15, 2018; and TO 3001 was modified at
least nine times between October 10, 2017 and March 19,
2018. See J.A. 7.
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 11
J.A. 11757. WSP signed the bilateral modification as re-
quired.
Throughout the course of performing the three task or-
ders, and well into 2018, WSP continued to submit all in-
voices using CLIN 2001 and its corresponding OY2 price
rates. J.A. 27512. Yet on July 23, 2018, WSP sent USACE
a letter “requesting to revise and resubmit [its] invoices for
all task order work performed on or after 22 October 2017
to reflect the correct unit prices for Option
Year 3 — CLIN 3001.” J.A. 23190. After receiving no re-
sponse, WSP submitted a formal request for equitable ad-
justment (REA) on September 28, 2018 seeking
$13,489,630, the difference between the price at OY2 unit
prices previously invoiced and OY3 unit prices for work
performed during OY3 through August 29, 2018.
J.A. 24603. On February 20, 2019, WSP submitted an ad-
justed REA revising the requested amount to $14,220,817
to account for work performed “from August 29, 2018
through the end of the mission on November 20, 2018.”
J.A. 25816. USACE’s Contracting Officer (CO) denied the
REA in its entirety on May 17, 2019. J.A. 25905–06.
After USACE’s denial, on March 16, 2020, WSP sub-
mitted a certified claim under the Contract Disputes Act,
41 U.S.C. §§ 7101–09, “seeking payment in the amount of
$14,069,044.60 . . . reflect[ing] the difference between” the
OY2 rates and OY3 rates. J.A. 26379. The CO denied
WSP’s claim in a final decision issued on July 1, 2020.
J.A. 27509–14. On September 24, 2020, WSP appealed the
CO’s decision to the Armed Services Board of Contract Ap-
peals (Board), arguing that USACE’s failure to pay it at
OY3 rates for work that was performed during that time
period amounts to “breaches of both the contract and the
implied covenant of good faith and fair dealing.” J.A. 9. The
government disputed WSP’s reading of the contract and in-
stead argued that OY2 “prices applied to all work per-
formed under the[] [three] TOs because the TOs were
issued during Option Year 2.” J.A. 9. The government also
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 12
argued the affirmative defense “that WSP failed to timely
assert its right to an adjustment under the Changes
Clause.” J.A. 9.
On October 13, 2022, the Board issued a final decision
denying WSP’s appeal. Agreeing with the government’s in-
terpretation, the Board concluded that “the contract unam-
biguously provides that the pricing for each TO is set when
the order is placed and remains in place for duration of the
work under the TO, even if the period of performance ex-
tends beyond the original term of the underlying contract
or option period.” J.A. 1–2. Because the Board concluded
that USACE acted in accordance with the contract and
there was no breach, it did not reach the implied covenant
of good faith and fair dealing issue or address the govern-
ment’s affirmative defense that WSP waived its claim by
failing to timely preserve its rights under the Changes
Clause. J.A. 13.
WSP timely appealed the Board’s decision on Decem-
ber 8, 2022. We have jurisdiction under 41 U.S.C.
§ 7107(a)(1)(A) and 28 U.S.C. § 1295(a)(10).
II
Under the Contract Disputes Act, a “decision of the
[Board] on a question of law is not final or conclusive” and
is subject to de novo review. 41 U.S.C. § 7107(b)(1); Triple
Canopy, Inc. v. Sec’y of Air Force, 14 F.4th 1332, 1337–38
(Fed. Cir. 2021). The Board’s interpretation of a contract is
a question of law to be reviewed de novo. Agility Logistics
Servs. Co. KSC v. Mattis, 887 F.3d 1143, 1148 (Fed. Cir.
2018); England v. Contel Advanced Sys., Inc., 384 F.3d
1372, 1377 (Fed. Cir. 2004). Nevertheless, we will give the
Board’s interpretation of a government contract careful
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 13
consideration, given the Board’s considerable experience
and expertise. Agility, 887 F.3d at 1148.
III
The question central to this appeal is whether under
the contract, the price for work performed during OY3 pur-
suant to a task order issued during OY2 is determined by
the date the task order is issued or by the date the work is
performed. If the former, the correct pricing for the work
performed in OY3 pursuant a task order issued during OY2
would correspond with CLIN 2001 rates; if the latter, the
correct pricing would correspond with (the higher)
CLIN 3001 rates. Because we conclude that the contract is
not plainly unambiguous as to whether the pricing for each
task order is set when the order is placed and remains set
for the duration of work under such order, or rather pricing
is based on the actual date of performance, and because we
conclude the Board did not properly consider the contract
in its entirety as modified by later-issued task orders (and
modifications of these task orders) in evaluating the par-
ties’ arguments about the proper interpretation of the con-
tract’s intended pricing, we vacate the Board’s finding that
the contract term is unambiguous and remand for recon-
sideration of the proper interpretation of the entire con-
tract as modified in accordance with this opinion.
A
In interpreting a contract, we seek to ascertain the
joint intent of the parties at the time the contract was
formed. See King v. Dep’t of Navy, 130 F.3d 1031, 1033
(Fed. Cir. 1997) (“The paramount focus is the intention of
the parties at the time of contracting; that intention con-
trols in any subsequent dispute.”); Edward R. Marden
Corp. v. United States, 803 F.2d 701, 705 (Fed. Cir. 1986)
(describing the “cardinal rule of contract construction that
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 14
the joint intent of the parties is dominant if it can be ascer-
tained”).
When interpreting a disputed contract provision, we
first determine whether the provision is unambiguous, or
if it is susceptible to more than one reasonable interpreta-
tion. Premier Off. Complex of Parma, LLC v. United States,
916 F.3d 1006, 1011 (Fed. Cir. 2019). In conducting this
analysis, [w]e “begin[] with the language of the written
agreement,” which “must be considered as a whole and in-
terpreted so as to harmonize and give reasonable meaning
to all of its parts.” Coast Fed. Bank, FSB v. United States,
323 F.3d 1035, 1038 (Fed. Cir. 2003) (en banc) (emphasis
added).
Where a contract’s language is clear and unambiguous,
“its meaning is to be ascertained in accordance with its
plainly expressed intent.” M&G Polymers USA, LLC v.
Tackett, 574 U.S. 427, 435 (2015). “In such circumstances,
the parties’ intent can be determined from the face of the
agreement and the language that they used to memorialize
[that] agreement.” CITGO Asphalt Ref. Co. v. Frescati
Shipping Co., 589 U.S. 348, 355 (2020) (internal quotation
marks omitted) (alteration in original). Thus, “[w]hen the
contractual language is unambiguous on its face, [the] in-
quiry ends and the plain language of the Agreement con-
trols.” Coast Fed. Bank, FSB, 323 F.3d at 1040–41.
“To show an ambiguity it is not enough that the parties
differ in their respective interpretations of a contract term,
rather, both interpretations must be reasonable.” Premier
Off., 916 F.3d at 1011 (internal quotation marks omitted).
B
WSP and the Government both argue that the contract
is unambiguous as to pricing for work performed in a later
operating year pursuant to a task order that issued in a
previous operating year. However, they provide different
interpretations. WSP argues that the only reasonable
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 15
interpretation of the contract is for work ordered during
OY2, but performed during OY3, to be priced according to
OY3 rates. The Government argues the Board correctly
held the contract unambiguously provided that pricing is
based on the date of task order issuance. As an initial mat-
ter, we hold that the Board erred in failing to consider the
contract in its entirety, including all modifications, when
conducting its analysis regarding ambiguity of the pricing
term. We vacate and remand for the Board to properly in-
vestigate the contractual terms by considering the entire
contract, including modifications made to task orders is-
sued pursuant to the contract and the contractual provi-
sions for challenging such modifications.
We further disagree with the parties and Board on the
merits that the contract is unambiguous as to the pricing
of services rendered in a given operating year pursuant to
task orders that were issued in prior operating years. We
address each party’s arguments in turn. The Board “h[eld]
that the contract unambiguously provides that the pricing
for each TO is set when the order is placed and remains in
place for duration of the work under the TO, even if the
period of performance extends beyond the original term of
the underlying contract or option period.” J.A. 1–2. In
reaching this conclusion, the Board examined two different
FAR clauses included in the contract, the FAR 52.216-21
Requirements Clause and the FAR ¶ 16.505(a)(2) (Order-
ing). The remainder of the Board’s analysis relied on an-
other case. J.A. 12 (citing Securityhunter, Inc., ASBCA
No. 60896, 18-1 BCA ¶ 36,981 at 180,135).
Contractual interpretation, including evaluation of
contractual terms for ambiguity, is an exercise that re-
quires evaluating a contract “as a whole.” Coast Fed,
323 F.3d at 1038. This requires considering all the
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 16
provisions of a contract taken together, including modifica-
tions made to the contract after the initial formation.
The contract underlying this appeal is a requirements
contract for services as defined by FAR 16.501-2(a). Re-
quirements contracts entered into by the federal govern-
ment contemplate issuance of orders for the performance
of tasks during the period of the contract. See FAR 52.216-
21(b) (“Delivery or performance shall be made only as au-
thorized by orders issued in accordance with the Ordering
clause”), J.A. 10059 (FAR 52.216-18(a) (Ordering Clause)
(“Any supplies and services to be furnished under this con-
tract shall be ordered by issuance of delivery orders or task
orders . . . .”)); see also 10 U.S.C. § 3401(b). That is, a re-
quirements contract, does not, on its own, create any obli-
gations for the contracting parties to perform the
contracted tasks or remit compensation for such perfor-
mance. Rather, a requirements contract sets up the terms
and conditions for task orders that are issued under the
contract. These task orders create obligations for the par-
ties to render services and remit payment.
Task orders thus become part of the contract under
which they are issued. The Board understands task orders
to modify a contract when its terms conflict with the terms
of the contract. See Indian and Native Am. Employment
and Training Coalition, 64 Comp. Gen. 460, 460 (1985),
85–1 CPD ¶ 432. (discussing “the modification to the con-
tract by the task order”). Modifications to task orders is-
sued pursuant a contract are accordingly also properly
understood as modifying the contract pursuant to which
they are made. While the contract states that “[i]n the
event of conflict between a . . . task order and this contract,
this contract shall control,” J.A. 10058, this provision is
properly understood to not apply to conflicts between task
orders and the contract which arise from modifications,
which by nature change something about the contract
terms.
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 17
While the Ordering Clause of the contract states “[i]n
the event of conflict between a delivery order or task order
and this contract, the contract shall control,” J.A. 10058,
modifications to task orders issued under a contract can be
understood to elucidate the meaning of terms in the under-
lying contract. In this case, several of the relevant modifi-
cations were bilateral modifications since the government
and WSP signed each modification.8
The task orders issued pursuant this contract were
subject to dozens of modifications during the contract’s du-
ration. Each of these modifications were made using Stand-
ard Form 30 (SF 30), which is entitled “Amendment of
Solicitation/Modification of Contract.” Further, though
these modifications may have been executed unilaterally
by the Contracting Officer, FAR 52.243-1 Alt I(a), several
of the modifications, particularly those most relevant to the
issues raised in this appeal, were signed by a representa-
tive of WSP.
The parties’ continuing transfer of funds to CLIN 2001
to prevent exceeding its NTE amount, even during OY3,
may inform the Board’s interpretation that a task order’s
pricing remains fixed to the CLIN it is issued under for the
duration of its performance, even when such duration of
performance extends into another operating year. On at
8 We note that, insofar as WSP had an issue with any
of the modifications made to the TOs that the Contracting
Officer was able to make unilaterally, the proper course of
action would have been to (1) refuse to sign the modifica-
tion and/or (2) request submit a proposal for equitable ad-
justment under the contract’s Changes Clause within 30
days if the “change causes an increase or decrease in the
cost of, or time required for, performance of any part of the
work under [the] contract.” FAR 52.243-1 Alt I (incorpo-
rated into the contract at J.A. 10057).
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 18
least four occasions between September 7, 2017 and No-
vember 3, 2017 (i.e., during both OY2 and OY3), over
$85,000,000 was transferred “from CLIN 3001 to
CLIN 2001 to ensure that sufficient ceiling is available for
hurricane response missions.” See, e.g., J.A. 10935 (empha-
sis added). WSP did not contest moving funds to
CLIN 2001 after OY2 expired and OY3 commenced on Oc-
tober 22, 2017. Instead, WSP signed all four of the ceiling
transfers to CLIN 2001. This is because, in accordance with
the contract, the parties needed to increase the task orders’
funding to prevent the cost of performance from exceeding
CLIN 2001’s NTE amount. Furthermore, the Novem-
ber 22, 2017 contract modification, which increased the
contract ceiling to nearly one billion dollars, allotted the
entire $860,000,000 increase to CLIN 2001. J.A. 11757. At
the time of this modification, WSP again did not oppose
this allocation of funds to CLIN 2001 but agreed to the bi-
lateral modification. See J.A. 11757 (requiring the contrac-
tor to sign the modification). Insofar as the relevant TO
modifications modify the period of performance for a TO is-
sued under a particular CLIN such that the new period of
performance extends beyond the period of performance
originally provided by the contract for that CLIN, these
modifications are properly understood as modifications to
the underlying contract. These modifications should have
been considered as part of the whole contract in evaluating
the ambiguity of the pricing provision.
Because the Board too narrowly focused on the con-
tract’s Requirements and Ordering Clauses, it did not con-
sider the effect of the modifications made to the TOs on
pricing and failed to consider the contract as a whole. This
deficiency in its analysis precludes us from being able to
affirm its conclusion that the contract unambiguously pro-
vides that provides that the pricing for each TO is set when
the order is placed. We therefore vacate the Board’s holding
that the contract is unambiguous as to pricing and remand
for the Board to investigate the pricing provisions of the
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 19
contract accounting for the modifications made to the task
orders.
C
We also reject both WSP’s and the Government’s argu-
ments that the pricing is unambiguously based on the date
of performance or the date of TO issuance, respectively. In
challenging the Board’s interpretation and advancing its
own purportedly unambiguous reading of the contract,
WSP raises four arguments: (1) the Board’s interpretation
erroneously reads Sections B and F out of the contract;
(2) the Board misapplied FAR 52.216-21(f) by conflating
the contract’s effective period with individual option years;
(3) the Board erred by rejecting WSP’s reasonable interpre-
tation of the contract; and (4) the Board erroneously relied
on extrinsic evidence to interpret the contract after con-
cluding the language was unambiguous. We address each
argument in turn.
1
WSP argues that the Board’s interpretation reads key
terms out of the contract in violation of well-settled con-
tract interpretation law. Appellant’s Br. 26. The Board con-
cluded that under the contract, the applicable pricing for
work performed under a task order is “established at the
time the task order is placed and those obligations remain
fixed for the duration of the work required under that or-
der.” J.A. 11. WSP contends this “interpretation renders
meaningless the contract’s Section B terms,” Appellant’s
Br. 26, and “effectively writes Section F out of the con-
tract,” Appellant’s Br. 29. We conclude that neither Sec-
tion B nor Section F unambiguously supports either
parties’ interpretation of proper pricing under the contract.
Section B of the contract contains CLINs for the Base
Year and each of the four option years. Each CLIN provides
generalized details relating the contract’s supplies and ser-
vices, prices, and periods of performance. See J.A. 10002–
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 20
11. WSP argues Section B also requires any “amount of the
Task Order that was not used up” by the end of OY2 (i.e.,
October 21, 2017), to “rollover” to OY3 beginning Octo-
ber 22, 2017. See Appellant’s Br. 27. WSP cites the provi-
sion in CLIN 3001 that “the total not to exceed amount [for
OY3] will be the unexpended amount remaining from op-
tion year two.” Id. at 26–27 (emphasis added) (citing
J.A. 10008). WSP contends that as a result, “Section B[]
plainly provides for removing ‘the unexpended amount’
from the Option Year 2 performance period and placing it
on Option Year 3.” Id. at 27.
While WSP’s interpretation is reasonable, when read
in the context of the contract as a whole, Section B may also
be reasonably understood to merely provide the basis for
calculating the correct ceiling and NTE amount for a given
CLIN. The provision’s reference to the “NOT TO EXCEED
AMOUNT” may be intended to prevent the parties from or-
dering or performing work under a given CLIN that would
exceed the contract’s maximum value or available ceiling.
In that case, the provision does not necessarily require any
unexpended amounts to “rollover” at the end of an option
year. Indeed, when read in conjunction with WSP’s discus-
sion about increasing a task order’s funding, see J.A. 10021
(“[W]hen the contractor has exceeded . . . 90% value of the
‘not-to-exceed’ task order dollar amount[, d]emobilization
shall commence if the task order funding is not in-
creased.”), the CLIN language in Section B can be reason-
ably read to authorize rolling unexpended funds back to a
previous year’s CLIN to prevent a task order from exceed-
ing a CLIN’s NTE amount. Section B is accordingly not un-
ambiguous.
WSP also argues the delivery dates in Section F’s
“DELIVERY INFORMATION” chart unambiguously tie
each CLIN to a specific period of performance. Appellant’s
Br. at 39. Section F sets forth geographic performance ar-
eas and delivery information. See J.A. 10051–52. The de-
livery information lists the specific dates of the period of
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 21
performance for each CLIN. J.A. 10051–52. The period of
performance for CLIN 2001, which corresponds to OY2, is
listed as “22-OCT-2016 TO 21-OCT-2017,” and the period
of performance for CLIN 3001, which corresponds to OY3,
is listed as “22-OCT-2017 TO 21-OCT-2018.” J.A. 10052.
WSP thus argues that “Section F plainly ties each CLIN
and CLIN rate to the period of performance,” such that “the
rate applicable to the performance of services” is deter-
mined by the date those services are performed. Appel-
lant’s Br. 31.
While we agree with WSP’s assertion that CLINs are
tied to periods of performance, we disagree that this con-
nection unambiguously requires work pursuant to a task
order to be priced based on when it is performed rather
than when it is ordered. When a task order is issued, it
must contain a “[d]ate and time of issuance” and a “[p]eriod
of [p]erformance for services to be performed.” J.A. 10054–
55. The applicable rate for work performed pursuant a TO
can thus be properly read to be based either on the CLIN
corresponding to the date of the TO’s issuance or the CLIN
the covers the period of performance. Therefore, Section F
also fails to unambiguously define the pricing provision per
either parties’ interpretation.
WSP also argues the Board misapplied FAR 52.216-
21(f) to find the contract pricing unambiguous because this
provision does not apply to the facts here. We agree.
The Board correctly noted that this provision “states
that the rights and obligations of the parties (e.g., pricing)
are established at the time the task order is placed and . . .
remain[] fixed for the duration of the work required under
that order.” J.A. 11. However, FAR 52.216-21(f) states that
it applies to “[a]ny order issued during the effective period
of this contract and not completed within that period shall
be completed by the Contractor within the time specified in
the order.” J.A. 10059 (emphasis added); see also
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 22
J.A. 10058–59 (incorporating the Requirements Clause by
full text).
When the contract was awarded on October 22, 2014,
it had an initial effective period of one year, with the ability
to exercise up to four additional options to extend the con-
tract for an additional year. Because option years 1
through 3 were exercised, the contract ultimately had an
effective period of October 22, 2014, to October 21, 2018.
Because all three task orders were issued during the con-
tract’s effective period and performed before its expiration,
FAR 52.216-21(f) of the Requirements Clause is inapplica-
ble. This section accordingly does not support either par-
ties’ interpretation of the correct pricing determination
methodology.
WSP further argues that its interpretation is the only
one that “gives meaning to all of the contract provisions”
and argues “the contract Schedule, consisting of Sections A
through G,” are rendered “‘meaningless and superfluous’”
by the government’s interpretation. Appellant’s Br. 37
(quoting Medlin Constr. Grp., Ltd. v. Harvey, 449 F.3d
1195, 1200–01 (Fed. Cir. 2006)). However, the bulk of
WSP’s argument focuses on Sections B and F of the con-
tract. See id. at 37–41. As previously discussed, neither
parties’ interpretation renders Section B or Section F of the
contract meaningless or superfluous.
WSP argues the Board erroneously relied on extrinsic
evidence to interpret the contract after concluding the lan-
guage was unambiguous. Appellant’s Br. 41. Because we
conclude the Board incorrectly concluded the contract lan-
guage was unambiguous, we need not address this argu-
ment.
2
The Government argues the Board correctly concluded
that the contract was unambiguous. The Board found the
contract was unambiguous and that the price of the
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 23
contract (i.e., which option year pricing would apply) was
determined at the time the task orders issued. However,
the contract provides specific periods of performances cor-
responding to each option year; task orders issued under
those option years may be reasonably read to be expected
to comply with those periods of performance. The contract
at FAR 52.217-8 discusses what happens when perfor-
mance must take place after a contract expires (i.e., when
an option to extend the contract for an additional year is
not exercised), but such a scenario is not implicated when
an option is exercised and the contract does not expire, as
is the case here. J.A. 10059.
D
For these reasons, we do not currently have before us a
convincing reason to conclude that the contract taken as a
whole, including modifications, supplies an unambiguous
answer to the question of which contract rates apply to the
costs at issue—for performance during OY3 of work speci-
fied under a task order issued in OY2, as modified both
during and after OY2. A fuller and more focused analysis
is required. Such an analysis might yet lead to a sound con-
clusion that the contract as a whole is ultimately unambig-
uous in the circumstances presented, interpreting “specific
language in light of the contract as a whole,” Garcia v. Dep’t
of Homeland Sec., 780 F.3d 1145, 1147 (Fed. Cir. 2015),
and “interpret[ing] the contract in a manner that gives
meaning to all of its provisions and makes sense,” Id. (quot-
ing McAbee Constr., Inc. v. United States, 97 F.3d 1431,
1435 (Fed. Cir. 1996)). If such a conclusion cannot be
reached, the analysis must proceed to the steps called for
to resolve contract-interpretation disputes when ambiguity
remains in the respect specifically at issue. See, e.g.,
CITGO Asphalt Refining Co. v. Frescati Shipping Co.,
589 U.S. 348, 355 (2020); M&G Polymers USA, LLC v.
Tackett, 574 U.S. 427, 438–42 (2015); HPI/GSA 3C, LLC v.
Perry, 364 F.3d 1327, 1334–35 (Fed. Cir. 2004).
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WSP USA SOLUTIONS INC. v. SECRETARY OF THE ARMY 24
IV
Because we conclude the Board erred by failing to con-
sider the contract as a whole in evaluating whether the
contract is ambiguous as to pricing and reject both parties’
arguments that the contract’s pricing scheme is unambig-
uous, we vacate the Board’s finding that the contract is un-
ambiguous and remand for reconsideration of the proper
interpretation of the contract including all relevant modi-
fications in accordance with this opinion.
VACATED AND REMANDED
C OSTS
Costs to appellant WSP.
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