On Petition for Review of a Decision of the District of Columbia Contract Appeals Board (D1062).
The opinion of the court was delivered by: Reid, Associate Judge
Argued September 20, 2006
Before WASHINGTON, Chief Judge, and FARRELL and REID, Associate Judges.
Unfoldment, Inc. ("Unfoldment") petitions for review of two orders of the District of Columbia Contract Appeals Board ("CAB") relating to Unfoldment's contract with the District of Columbia Child and Family Services Agency ("CFSA") for the provision of residential foster care services to children. Unfoldment in essence argues that the CAB improperly dismissed, or in the alternative, granted summary judgment on certain of its claims, especially its claims that CFSA breached its contract by failing to pay Unfoldment for the stated minimum quantity of placements required under its indefinite quantity contract. We hold that Unfoldment's contract with CFSA consisted not only of the articles of the contract, but also several other documents, including the Request for Proposal ("RFP"), which were incorporated into and made part of Unfoldment's contract. Because the CAB did not construe the total contract, it erred by concluding that the contract contained no minimum placement requirement. Therefore, we reverse the CAB's decision with respect to its dismissal of Unfoldment's breach of contract and bad faith claims relating to the minimum placement requirement of the contract, and remand this case for further proceedings on those specific claims. However, we affirm the CAB's decisions regarding Unfoldment's other claims.
In June 1997, CFSA (then under the control of a court-appointed receiver)*fn1 executed a contract with Unfoldment. Article I of the contract specified that: "The Contractor [Unfoldment] shall provide continuing residential foster care services to male and female children between the ages of 9 and 21 years of age who are wards of the District in a nurturing group home setting. . . ." Article XVI (A) pertaining to the contract period provided that:
1. The term of this contract shall be from July 1, 1997, through June 30, 1998.
2. The duration of the contract shall be for a period of one year from the date of the contract start. The [CFSA] may extend the duration of the contract for a period of one year or any portion thereof by written notice to the Contractor before expiration of the contract. The exercise of an option is subject to the availability of funds at the time of the exercise of the option and the approval of the District of Columbia Financial Responsibility and Management Assistance Authority (the Control Board).
The contract contained a "termination for default or convenience" provision in Article XXII:
The CFSA may by written notice of default or convenience to the Contractor, terminate the whole or any part of this agreement in any one of the following circumstances: A. If the Contractor fails to make delivery of the supplies or to perform the services within the time specified herein or any extension thereof; or
B. If the Contractor fails to perform any of the other provisions of this agreement, or should fail to make progress so as to endanger performance of the resulting agreement in accordance with its terms, and in either of these two circumstances does not cure such failure within a period of time as specified in writing after receipt from the Contract Monitor or Contract Administrator specifying such failure.
C. The CFSA may terminate any performance of work under this agreement, in whole or, from time to time, in part if the CFSA determines that a termination is in its best interest. At such time, the Contracting Officer will issue a Notice of Termination specifying the extent of termination and effective date. The Contractor will only be paid for work or services actually performed or delivered up until the effective of the contract termination.
In terms of the contract documents, Article XXV incorporated specified documents into the contract, and also specified the order of precedence for the resolution of any inconsistencies:
The following documents are incorporated and made a part of this contract by reference. In the event of any inconsistency among the provisions of this contract, the inconsistency shall be resolved by giving precedence to the following order:
A. All Articles of this contract.
B. Modified Final Order and Implementation Plan in LaShawn v. Barry, CA ...