BOARD OF CONTRACT APPEALS U.S. GOVERNMENT PRINTING OFFICE In the matter of ) ) the Appeal of ) ) COMMERCIAL DATA CENTER, INC. ) Docket No. GPOBCA 18-99 ) Program C237-S ) Purchase Order 94925 ) For the Appellant: Frederic G. Antoun, Jr., Esq., Chambersburg, Pennsylvania. For the Respondent: Drew Spalding, Esq., Deputy General Counsel, U.S. Government Printing Office, Washington, DC. Before KERRY L. MILLER, Administrative Judge. DECISION Commercial Data Center, Inc., (CDC) appeals the Contracting Officer's decision denying CDC's request for additional compensation incurred as a result of the Government's decision to transmit certain data on Saturdays. 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. In August 1998, the U.S. Government Printing Office (GPO) Term Contracts Division, issued an Invitation for Bids (IFB) for Program C237-S, a requirements contract for the printing and mailing of six different types of personalized notices for the Social Security Administration (SSA). Rule 4 File, Tab A at 1. 2. The IFB was mailed to 39 potential bidders. Rule 4 File, Tab B. The GPO received three sealed bids that were opened on August 17, 1998. The bids were as follows: Commercial Data Center, Inc. $1,378,337.06 Digital Ink $2,777,913.24 KPT, Inc. $5,355,544.29 Rule 4 File, Tab D. 3. Following the GPO's on-site pre-award survey and a Government review of CDC's Production and Quality Plan, GPO awarded the contract to CDC on September 18, 1998. Rule 4 File, Tabs F, G, H.1 4. Under the terms of the contract, CDC was required to receive electronically transmitted Government data, print personalized notices from that data, combine the notices with pre-printed items and mail the materials to Social Security applicants and recipients. Rule 4 File, Tab A at 12. These products were collectively referred to in the contract as Title XVI2 Notices. Program C237-S was a new contract. Rule 4 File, Tab A at 1. However, the IFB did contain the following estimates, based on historical Government data: MAILER 1. (ZN8125) Daily Average - 500 Min. - Max. - 100 - 800 Comp - Less than 100 Daily + Comp - 10,500 per month Leaves - 1 - 5 (100%) (English only) MAILER 2. (ZNOTABLE) Daily Average - 31,000 Min. - Max. - 11,000 - 63,000 Comp - 227,200 Daily + Comp - 850,500 per month SPIKE - 70,000 each month (February/August) Ranges of Leaves: - 1 - 5 93% of notices (English only) 6 - 12 7% of notices (English only or bilingual English/Spanish) Insert - None Folding - Trifold MAILER 3. (ZNAONS) Daily Average - 3,000 Min. - Max. - 200 - 6,000 Comp - Not Applicable Daily + Comp - 55,500 per month Ranges of Leaves: - 1 - 5 1% of notices (English only) 6 - 15 99% of notices (English only or bilingual English/Spanish) Insert - Reply Envelope Folding - Bifold MAILER 4. (ZNAWARD) Daily Average - 2,500 Min. - Max. - 1,000 - 3,000 Comp - Less than 100 Daily + Comp - 46,000 per month Ranges of Leaves: - 1 - 5 30% of notices (English only) 6 - 17 65% of notices (English only or bilingual English/Spanish) Insert - Pamphlet 133 x 203 mm (5-/4 x 8") Folding - Bifold MAILER 5. (ZNDENY) Daily Average - 650 Min. - Max. - 500 - 1,000 Comp - Less than 100 Daily + Comp - 14,000 per month Ranges of Leaves: - 1 - 5 80% of notices (English only) 6 - 19 10% of notices (English only) 10% of notices (Bilingual English/Spanish) Insert - Pamphlet 89 x 203 mm (3-1/2 x 8") Folding - Trifold MAILER 6. (ZNPLNACT) Daily Average - 12,500 Min. - Max. - 5,000 - 23,000 Comp - 125,000 Daily + Comp - 375,000 per month Ranges of Leaves: - 1 - 5 87% of notices (English only) 6 - 15 13% of notices (English only, or bilingual English/Spanish) Insert - None Folding - Trifold Rule 4 File, Tab A at 1, 13-14. 5. The contract contained, inter alia, requirements describing the three types of production runs that the contractor would be obligated to produce. "Spike runs" were defined as "large additional quantities run one Saturday during the month of February, and one Saturday during the month of August." Rule 4 File, Tab A at 13. A "Comp run" was defined as a "monthly run occurring around the third week of each month." Id. "Daily runs" were not defined. 6. The contractor was required to interface with the SSA's national File Transfer Management System (FTMS) to receive the transmission of Title XVI data files from the SSA. The contract required CDC's FTMS software "be operational for the receipt of data files from 00:01 ET Monday until 16:00 ET Saturday, excluding Federal holidays." Rule 4 File, Tab A at 17. 7. The contract required "complete production and mailing must be made on daily, comp, and spike runs within 5 workdays after receipt of each transmitted file." (Emphasis in original.) Rule 4 File, Tab A at 26. The term "workday" was not defined in Program C237-S. However, GPO Contract Terms, GPO Publication 310.2 (Rev. 9-88), incorporated by reference, defined "workday" as "Monday through Friday of each week, exclusive of the days on which Federal Government holidays are observed." Rule 4 File, Tab A at 2; GPO Contract Terms, Clause 3. 8. After contract award Appellant learned that the Government planned to transmit the monthly comp run on Saturdays. Affidavit of Frank Klan, ¶ 7. 9. During the initial months of the contract, Appellant failed to complete production and mailing of comp runs within 5 workdays as required by the contract. According to Appellant, the tardiness was due to the fact that it had no weekend production shifts to begin production on Saturday, the day it received the comp file transmission. Appellant's Statement of Undisputed Facts 11, 13. Thus, the comp runs had to be produced with its Monday through Friday production shifts. 10. Appellant argued that the specifications in the IFB failed to alert bidders that the monthly comp runs would be transmitted on Saturday and requested the Government allow it seven calendar days to complete the work. Rule 4 File, Tab K. The Contracting Officer declined to allow any additional time for production of the comp runs. Rule 4 File, Tab L. Appellant requested the Government issue a change order or a contract price adjustment to compensate it for alleged additional expenses caused by the Saturday transmission of comp runs. Rule 4 File, Tab N. 11. In a Final Decision dated June 22, 1999, the Contracting Officer denied Appellant's claim for additional compensation for Saturday comp runs, explaining: On page 17 of 31 in the contract specifications it states: "The contractor's FTMS software shall be operational for the receipt of data files from 00:01 ET Monday until 16:00 ET Saturday, excluding Federal holidays." On page 26 of 31 in the contract specifications it states: "Complete production and mailing must be made on Daily, Comp, and Spike Runs within 5 workdays after receipt of each transmitted file. " In accordance with the contract, when any file that meets the specifications is transmitted and received prior to 16:00 ET on Saturday complete production and mailing must be accomplished within 5 workdays, which is on or before the following Friday, exclusive of Federal Government holidays. If Commercial Data Center, Inc., has made a business decision to start the production process on Saturday or Sunday when a Saturday transmission occurs, it does not constitute the basis for an equitable price adjustment under the contract. Therefore, your request for additional compensation is denied. Rule 4 File, Tab O. 8. Thereafter, on August 20, 1999, Appellant filed a timely notice of appeal with the GPO Board of Contract Appeals. DISCUSSION This case is before the Board on Appellant's Motion for Summary Judgment and Respondent's Opposition to Appellant's Motion for Summary Judgment and Cross Motion for Summary Judgment. Appellant argues that the contract was ambiguous and that its interpretation of the contract, that comp runs would not be transmitted on Saturdays, is a reasonable one. Respondent argues that it is entitled to judgment in its favor because Appellant's production problems were the result of assumptions it made prior to bidding and without making prior inquiry of the Contracting Officer. Respondent concludes that Appellant should bear the risk of its erroneous assumptions. Given the undisputed facts in this case, Respondent is entitled to summary judgment in its favor. Summary Judgment Standard In deciding summary judgment3 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). 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 the adverse party's pleadings, but the adverse party's 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 the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." 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. V.N. Products, Inc., GPOBCA No. 10-00 (April 25, 2002), 2002 GPOBCA LEXIS 2, 2002 WL 1420008; see also 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 the instant appeal, after the Government began transmitting monthly comp run data on Saturdays, Appellant had difficulty completing production of the comp runs within 5 workdays as required by the contract and had to devote additional resources to the task. Appellant argues that the contract language did not put it on notice that comp run transmissions would occur on Saturdays. In addition, Appellant argues that since the contract did not designate Saturday as a "workday" for the transmission of comp run data, its interpretation that the GPO could not force it to begin production of comp runs on Saturdays was reasonable. Appellant concludes an ambiguity therefore exists and since its interpretation is a reasonable one, it is entitled to judgment in its favor under the principle of contra proferentem.4 Respondent has a substantially different view of the contract. Respondent argues that the contract described clearly the work to be ordered and that Appellant's production problems stem from various pre-bid assumptions it made that proved to be erroneous. Respondent concludes that it is Appellant who should bear the consequences that flow from Appellant's erroneous assumptions. Once again, the Board is presented with two very different interpretations of the same contract provisions. Such a situation is common in litigation and does not lead inevitably to the conclusion that the contract is ambiguous. V.N. Products, Inc., GPOBCA No. 10-00 (April 25, 2002), 2002 GPOBCA LEXIS 2, 2002 WL 1420008. 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). Whether an interpretation falls within the zone of reasonableness cannot be ascertained until the Board performs an analysis of the contract's language. The Board's primary task here 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). In the instant appeal the relevant contract terms are: The contractor's FTMS software shall be operational for the receipt of data files from 00:01 ET Monday until 16:00 ET Saturday, excluding Federal holidays. Rule 4 File, Tab A at 17. REGULAR PRODUCTION SCHEDULE: Live production files will be transmitted on a daily basis except for Federal Government holidays, in which case the data will be wire transmitted on the next day. Complete production and mailing must be made on Daily, Comp, and Spike Runs within 5 workdays after receipt of each transmitted file. (Emphasis in original). Rule 4 File, Tab A at 26. GPO Contract Terms, GPO Publication 310.2 (Rev. 9-88), incorporated by reference, defined "workday" as "Monday through Friday of each week, exclusive of the days on which Federal Government holidays are observed." Rule 4 File, Tab A at 2; GPO Contract Terms, Clause 3. In addition, the contract advised: The figures show the: average daily run; minimum and maximum quantities required daily; comp run (monthly run occurring around the third week of each month)... Rule 4 File, Tab A at 13. A. APPELLANT'S INTERPRETATION OF THE CONTRACT IS ERRONEOUS AND UNREASONABLE Appellant contends that the contract did not put it on notice that comp runs would be transmitted on Saturdays. The Board agrees with this contention. Nothing in the contract designates a particular day of the week for the transmission of comp run data. Instead, the parties agreed to an indefinite schedule where transmission of comp run data would occur "around the third week of each month." Rule 4 File, Tab A at 13. The contract itself did not define the term "week." 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, 832 F.2d 574, 579 (Fed. Cir. 1987) (quoting Elden v. United States, 617 F.2d 254, 260-61 (Ct. Cl. 1980); 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). Therefore, the term "week" as used in the instant contract means the ordinary, commonly understood meaning of a 7-day cycle beginning on Sunday and ending on Saturday. However, the Board also reads another part of the contract as placing a limitation on the Government's right to transmit data during the week. The contract stipulates that the contractor's software need not be operational for the receipt of data files for the entire 7-day week, but only from 00:01 ET Monday until 16:00 ET Saturday, excluding Federal holidays. Rule 4 File, Tab A at 17. The Board is guided by the well accepted and basic principle of contract construction 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 (April 23, 1996), 1996 GPOBCA LEXIS 43, 1996 WL 273662 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). Thus, when applying the above-referenced principles of contract construction and reading the contract as a whole, the Board concludes that the contract authorizes the Government to transmit data files, including comp run data files, 00:01 ET Monday through 16:00 ET Saturday "around the third week of each month." As to Appellant's contention that the contract does not authorize the Government to require Appellant to work on Saturdays, the Board agrees in part. Nothing in the contract mandates that Appellant begin processing or printing comp run data on Saturday. The only exception is the above-cited contractual requirement that Appellant's software must be operational to receive the Government-transmitted data files on Saturday until 16:00 ET. See Rule 4 File, Tab A at 17. The contract specifications left the scheduling or manner of production to the discretion of the contractor. The Board recognizes that comp runs were projected by the contract solicitation to be the largest single data loads transmitted by the Government under Program C237-S. See Rule 4 File, Tab A at 13-14. Appellant apparently planned to use its existing second and third shift employees to work on any comp run data transmitted Monday to Friday. Klan Affidavit ¶ 6. This gave Appellant 5 workdays for production plus additional hours on Saturday and Sunday should more production time be needed.5 For any work transmitted on Saturday, the five workdays provided under the contract would begin Monday and end Friday. However Appellant did not have an existing second or third shift on Saturday. In short, because of Appellant's workforce arrangement and the contract's delivery terms, Appellant would not have as many potential production hours to complete work transmitted on Saturday as it would have for work transmitted Monday to Friday, even though it would have the same number of "workdays." Appellant seeks to have the Board read the contract in a way that will guarantee it 7 calendar days production time regardless of when the data is transmitted. No such guarantee is presently found in the contract. In support of its interpretation Appellant proffers the affidavit of its President, Frank Klan. Mr. Klan concluded from the solicitation language that Saturday transmission of files would be limited to the daily data files for Monday or to the twice-yearly spike runs. According to Klan: However, because there was no mention of the fact that Social Security would transmit the large comp runs on Saturday, we concluded that the comp runs would be transmitted on a normal workday. We based this conclusion on the fact that in the specs, GPO informed us that the large spike runs would be delivered on Saturday (not a typical GPO or Social Security workday) but it made no such statement regarding the comp run. ¶ 4, Affidavit of Frank Klan. The issue for the Board to decide is not what Appellant's President actually thought, or what the Government may have subjectively intended. In analyzing disputed contract language, the courts and contract appeals boards place themselves in the shoes of a reasonably prudent contractor and give the language of the contract that meaning which a reasonably intelligent contractor acquainted with the circumstances surrounding the contract would give it. See The George Marr Co., supra, slip op. at 41-42; Professional Printing of Kansas, Inc., GPOBCA No. 2-93 (May 19, 1995), 1995 GPOBCA Lexis 19, 1995 WL 488488, slip op. at 47; General Business Forms, Inc., GPOBCA No. 2-84 (Dec. 3, 1985), 1985 GPOBCA Lexis 21, 1985 WL 154846 slip op. at 18 (citing, Salem Engineering and Construction Corp. v. United States, 2 Cl. Ct. 803, 806 (1983)). The Board concludes that Appellant's reading of the contract is not reasonable when basic contract interpretation rules are applied. One pertinent rule is that 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). Appellant's interpretation would render meaningless the explicit requirement that its equipment be available to receive transmissions of data from the Government each Saturday until 16:00 ET. The Board concludes it is unreasonable to read a contract provision requiring a contractor to have the capacity to receive data on Saturday as also prohibiting the Government from transmitting data on Saturday.6 In interpreting the contract, Appellant also assumed that Saturdays would be reserved for spike run data transmission or "limited volume" daily file transmission. Klan Affidavit ¶¶ 2, 4. The plain language of the contract does not support this assumption, as there is no provision in the contract reserving Saturdays exclusively for the transmission of spike runs. The contract required Appellant to maintain Saturday data receipt capability 52 weeks a year. Since spike runs would only be transmitted on two Saturdays per year, it was unreasonable to assume that the Government was precluded from transmitting comp run data on the other 50 Saturdays.7 Such an interpretation would render the language requiring data receipt capability superfluous for the other 50 Saturdays each year. Appellant's interpretation also ignored the fact that the parties agreed to a very generalized schedule for the transmission of comp run data. The contract language spoke of transmissions "around" the third week of each month. By agreeing to such a non-specific contract term Appellant assumed certain risks. First, it assumed the risk of uncertainty regarding the exact day of the week the comp runs were to be transmitted. Second, since the quoted language carries no guarantee of consistency in data delivery, there was no assurance that the day chosen for comp run data transmission would not vary from month to month. Thus Mr. Klan's interpretations regarding comp run data transmissions were based on erroneous assumptions and are not supported by the contract's terms. While the term "around the third week in each month" is not as definite a contract term as one that designates a particular day of the week, it is not an ambiguous term. Rather, it is a contract term that gives the Government the flexibility to transmit comp run data on any day during the period of 00:01 Monday to 16:00 Saturday during the third week of each month. Since the Government's comp run data transmissions during the term of Program C237-S occurred within that time period, Appellant was contractually obligated to produce the comp runs within 5 workdays. Accordingly, Appellant is not entitled to the additional compensation it has claimed. B. APPELLANT HAD A DUTY TO INQUIRE ABOUT THE SCHEDULE FOR COMP RUN TRANSMISSIONS. Even if this Board were to assume arguendo that the contract term "around the third week of each month" was ambiguous, Respondent would still be entitled to summary judgment, because the ambiguity argued by Appellant is a "patent" one. What constitutes a patent ambiguity "cannot be defined generally, but [must be determined] on an ad hoc basis, Max Drill, Inc. v. United States, 192 Ct. Cl. 608, 626 (1970) (citation omitted), by considering whether the ambiguity "would be apparent to a reasonable person in the claimant's position." Lockheed Martin IR Imaging Systems, Inc. v. West, 108 F.3d 319, 322 (Fed. Cir. 1997). The patent ambiguity doctrine is aimed at avoiding costly post-award litigation, S.O.G. of Arkansas v. United States, 212 Ct. Cl. 125 (1976), as well as protecting the integrity of the bidding process by ensuring that all offerors bid on the same specifications. Newsom v. United States, 230 Ct.Cl 301, 303, 676 F.2d 647, 649-50 (1982). If a contract contains a patent ambiguity, the contractor is under a duty to inquire and must seek clarification of the proper contract interpretation prior to submitting a bid. Community Heating & Plumbing Co. v. Kelso, 987 F.2d 1575, 1579 (Fed. Cir. 1993) (citing Interstate Gen. Gov't Contractors, Inc. v. Stone, 980 F.2d 1433 (Fed. Cir. 1992). This duty to inquire prevents contractors from exploiting contract ambiguities by adopting narrow interpretations in preparing their bids and then, after award seeking equitable adjustments to perform the "additional" work that the government actually wanted. Triax Pac., Inc. v. West, 130 F.3d 1469, 1475 (Fed. Cir. 1997). This duty to inquire exists regardless of the reasonableness of the contractor's interpretation. Fortec Constructors v. United States, 760 F.2d 1288, 1291 (Fed. Cir. 1985) (citing Newsom v. United States, 230 Ct.Cl 301, 676 F.2d 647, 649-50 (1982)). If a contractor does not inquire, any patent ambiguity will be resolved against the contractor. Triax at 1475. In the instant appeal, Appellant could have questioned the government about the full scope of its responsibilities prior to bidding and sought a schedule for the transmission of comp data more definite than "around the third week of each month." This generalized delivery term was apparent on the face of the contract solicitation. As such, Appellant had the option of remaining silent and leaving the scheduling of the contract's single largest data transmission entirely up to the government's discretion, or of seeking clarification, or of requesting the solicitation be amended to provide for a more definite transmission schedule. Since Appellant chose to remain silent the ambiguity must be resolved against it. CONCLUSION Having considered all of Appellant's arguments, whether or not expressly mentioned, the Board concludes that 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. July 30, 2003 KERRY L. MILLER Administrative Judge ___________________ 1 Appellant's claim for post-award relief from an alleged error in its bid was denied by the Contracting Officer. Appellant's subsequent appeal was denied by the Board in Commercial Data Center, Inc., GPOBCA No. 12-99 (July 26, 2001), 2001 GPOBCA LEXIS 3, 2001 WL 870207. 2 Title XVI of the Social Security Act, established a program to provide supplemental security income to individuals 65 and over, or who are blind or disabled. 42 U.S.C. § 1381. 3 Although the Board's rules in effect when this appeal was filed did not provide explicitly for a summary relief procedure, the Board has routinely entertained summary judgment motions. See WBC, Inc., GPOBCA No. 17-98 (Sept. 22, 1999), 1999 GPOBCA LEXIS 12, 1999 WL 33176277; Graphicdata, Inc., GPOBCA No. 35-94 (June 14, 1996), slip op. at 47, 1996 GPOBCA LEXIS 28, 1996 WL 812875, and cases cited therein. 4 If after going through all other rules of construction the only remaining question is which of two possible and reasonable meanings should be adopted, courts will often chose the meaning that is less favorable to the party who authored the contract. This tie breaking technique is known as "contra proferentem." The device is intended to aid a party whose bargaining power was less than that of the draftsperson. Corbin on Contracts Revised Ed. § 24.27 (1978); United States v. Haas & Haynie Corp., 577 F.2d 568, 574 (9th Cir 1978); see also Restatement (Second) of Contracts § 206. Government contracts are likely to be construed against the government as the drafting party. Restatement (Second) of Contracts § 207, comment a. It must be emphasized that this rule is not to be used at all if there is only one reasonable meaning to be applied. Pitcher v. Principal Mut. Life Ins. Co., 870 F.Supp 903 (S.D. Ind. 1994) aff'd 93 F.3d 407 (7th Cir. 1996). 5 Weekends are not counted as "workdays" in the contract's production schedule. See Clause 3, GPO Contract Terms, GPO Publication 310.2 (Rev. 9-88). 6 The contract carefully described this requirement as one that was applicable Monday to Saturday and did not use a more restrictive term such as "workday" which would have limited the requirement to Monday through Friday. 7 Indeed, it was more logical to assume SSA would transmit the larger comp files on Saturday rather than during the Monday through Friday period, a time when it was normally transmitting daily data files.