Csi Aviation, Inc. v. Dhs ( 2022 )

Case: 21-1630 Document: 49 Page: 1 Filed: 04/14/2022
United States Court of Appeals
for the Federal Circuit
______________________
CSI AVIATION, INC.,
Appellant
v.
DEPARTMENT OF HOMELAND SECURITY,
GENERAL SERVICES ADMINISTRATION,
Appellees
______________________
2021-1630
______________________
Appeal from the Civilian Board of Contract Appeals in
Nos. 6292/6386, 6543/6801, 6581/6582, Administrative
Judge Kyle E. Chadwick, Administrative Judge Harold C.
Kullberg, Administrative Judge Jerome M. Drummond.
______________________
Decided: April 14, 2022
______________________
JASON NICHOLAS WORKMASTER, Miller & Chevalier
Chartered, Washington, DC, argued for appellant. Also
represented by ELIZABETH J. CAPPIELLO, LAURA G.
FERGUSON, ALEJANDRO LUIS SARRIA.
IN KYU CHO, Civil Division, Commercial Litigation
Branch, United States Department of Justice, Washington,
DC, argued for all appellees. Also represented by BRIAN M.
BOYNTON, MARTIN F. HOCKEY, JR., PATRICIA M. MCCARTHY.
Appellee Department of Homeland Security also
Case: 21-1630 Document: 49 Page: 2 Filed: 04/14/2022
2 CSI AVIATION, INC. v. DHS
represented by CASSANDRA MAXIMOUS, ANDREW WAGNER,
Office of the Principal Legal Advisor, United States De-
partment of Homeland Security, Washington, DC. Appellee
General Services Administration also represented by
SARAH PARK, United States General Services Administra-
tion, Washington, DC.
______________________
Before NEWMAN, DYK, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
This is a government contract case in which CSI Avia-
tion, Inc. seeks payment from the Department of Homeland
Security for flight cancellation charges, totaling
$40,284,548.89, that CSI contends it is owed under the
Schedule Contract. CSI appeals the decision of the Civilian
Board of Contract Appeals holding that the CSI Terms and
Conditions were not incorporated by reference into the
Schedule Contract and dismissing six consolidated appeals
on that basis. Because we determine that the Schedule
Contract expressly incorporates at least one document that
unambiguously identifies the CSI Terms and Conditions
and that makes clear such terms and conditions apply to
all operations, we reverse the Board’s holding to the con-
trary. Since that holding formed the basis for all six dis-
missals, we vacate the Board’s summary judgment decision
and remand for further proceedings.
I
A
Under the Federal Supply Schedule Program, the Gen-
eral Services Administration (GSA) “acts as the contracting
agent for the federal government” and negotiates “base
contracts with suppliers of commercial products and ser-
vices.” Sharp Elecs. Corp. v. McHugh, 707 F.3d 1367, 1369
(Fed. Cir. 2013) (cleaned up). These base (or schedule) con-
tracts streamline the acquisition process for federal
Case: 21-1630 Document: 49 Page: 3 Filed: 04/14/2022
CSI AVIATION, INC. v. DHS 3
agencies, see CGI Fed. Inc. v. United States, 779 F.3d 1346,
1352 (Fed. Cir. 2015), and “allow [them] to take advantage
of the flexible and dynamic commercial market-pricing en-
vironment,” so all federal customers, “regardless of size or
location,” can “place orders directly with contractors and
receive the same services, convenience, and pricing,”
Appx5307.
The Federal Supply Schedule Program “closely mirrors
commercial buying practices.” Appx5307. But, instead of
“evaluating prices head to head . . . in a competitive envi-
ronment,” GSA assesses pricing “as it relates to [the offe-
ror’s] commercial selling practices.” Appx8775. An offeror
submits a completed commercial sales practices sheet
along with supporting documentation that discloses com-
mercial pricing, market participants, sell price, and terms
and conditions for the offeror’s “most favored customer” in
a competitive environment. Appx5367, 8775. Relying on
this information and in accordance with the Federal Acqui-
sitions Regulations (FAR), a GSA contracting officer deter-
mines whether the pricing is “fair and reasonable” not as it
relates to the competitive environment but “as it relates to
[the offerror’s] commercial selling practices.” Appx5367,
8775. Should the contracting officer accept the offer, the
Federal Supply Schedule Program “allow[s] executive
agencies to issue orders for those commercial products pur-
suant to the underlying [GSA] contract.” CGI Fed., 779
F.3d at 1352.
B
CSI Aviation, Inc. is a worldwide services broker that
provides “passenger and cargo air charter, aircraft leasing,
and comprehensive aircraft management.” Appx6924. On
November 6, 2008, CSI submitted an offer to GSA for a
Travel Services Solutions contract under Schedule 599 for
“[a]ir charter services operated by brokers, and various
auxiliary services that will be used to support the contract.”
Appx6924. Under this contract, CSI would “provide a full
Case: 21-1630 Document: 49 Page: 4 Filed: 04/14/2022
4 CSI AVIATION, INC. v. DHS
range of services to assist Government agencies in Travel
Services Solutions” through “a non-mandatory, indefinite
delivery - indefinite quantity Multiple Award Schedule
contract that [would] allow for firm fixed-price task orders
(and for labor hours and time and materials task orders
based on firm-fixed prices).” Appx6924.
On February 27, 2009, in response to a revised solicita-
tion from GSA for new air charter services, CSI submitted
a revised proposal. This proposal included its commercial
price list and the CSI Terms and Conditions, dated Febru-
ary 2009. In its March 2, 2009 response, the Contracting
Officer asked CSI to provide model numbers for each air-
craft offered because the provided aircraft types were “too
vague to do a proper comparative price analysis.”
Appx9055. The Contracting Officer also acknowledged that
“the CSI Terms and Conditions document [had been] sub-
mitted to [GSA]” but asked CSI if GSA was “required to
initial off on these or are these requirements for ordering
agencies to comply with? If so,” the Contracting Officer con-
tinued, he was “going to have to submit these for Legal re-
view as we haven’t had to agree to terms like these from
other air charter providers.” Appx9055. CSI replied that
“the Terms and Conditions . . . were just provided for
[GSA’s] information.” Appx9581.
On March 9, 2009, the Contracting Officer “determined
that CSI’s offer, including the revised pricing (March 2,
2009), [was] acceptable to the Government.” Appx9592. He
instructed CSI to review a document that would “become
the attachment to the signed cover page [Standard
Form] 1449” and to “confirm that this accurately and com-
pletely addresse[d] all elements of the contract to be
awarded that may not be directly addressed within the in-
formation submitted and/or agreed upon.” Appx9592. CSI
immediately returned “the final documents [the parties]
ha[d] agreed to,” including the SF1449 attachment, a final
proposal letter, and the Revised Commercial Price List, all
of which CSI dated March 9, 2009 to reflect the final review
Case: 21-1630 Document: 49 Page: 5 Filed: 04/14/2022
CSI AVIATION, INC. v. DHS 5
date. Appx9592. GSA awarded the Schedule Contract to
CSI the next day.
C
CSI’s Schedule Contract includes the signed SF1449
and attached pages, Appx5277–79, together with the fol-
lowing documents, among others, listed in the SF1449 as
being expressly “incorporated and made a part of the con-
tract”: 1) the Travel Services Solutions schedule solicita-
tion “dated February 10, 2009, superseding the former
solicitation”; 2) the Offer; and 3) the Revised Commercial
Price List, Appx5279 (listing the named documents on
page 1b of CSI’s SF1449).
The Offer’s table of contents contains a “Pricing” sec-
tion that identifies four documents submitted as part of the
Offer, including: “CSI Commercial Sales Practices,” “CSI
Pricing Policy,” the Revised Commercial Price List, and
“CSI Terms and Conditions (Standard Commercial War-
ranty).” Appx5289. The Pricing Policy includes a “Terms
and Conditions” provision stating that “CSI Terms and
Conditions, in other words, our Standard Commercial War-
ranty, will apply to all operations and are included for ref-
erence . . . . Pricing conditions are further detailed in our
CSI Commercial Pricelist.” Appx5516.
The Revised Commercial Price List provides the total
hourly rates for Special Item Number 599-5 (air charter
broker services), where the “[h]ourly prices include air-
craft, crew, maintenance, insurance, fuel and domestic
ground handling” and represent the highest possible
hourly rate that the government could be charged.
Appx5297–98. For Special Item Number 599-1000 (con-
tract support items, and auxiliary supplies and services),
the Revised Commercial Price List states: “Hourly prices
do not include other charges below,” referring to a bullet-
point list that identifies specific taxes, fees, surcharges,
and other charges that “will be determined for each re-
quirement, if applicable.” Appx5298–99 (emphasis
Case: 21-1630 Document: 49 Page: 6 Filed: 04/14/2022
6 CSI AVIATION, INC. v. DHS
omitted). And “[a]ny charges will be itemized for each re-
quirement and are subject to change in accordance with our
CSI Terms and Conditions.” Appx5298. The Revised Com-
mercial Price List also includes a “Terms and Conditions”
provision, which states that “CSI Terms and Conditions
02/09, or most current, will apply to all operations.”
Appx5299.
On February 27, 2009, CSI emailed its Commercial
Price List and the CSI Terms and Conditions to the GSA
Contracting Officer. 1 The CSI Terms and Conditions in-
clude a “Cancellation Charges” provision that states:
In addition to any damages, CSI and the Air Car-
rier shall be entitled to recover any special out of
pocket expenses actually incurred specifically, di-
rectly and solely in connection with the cancelled
flights. . . . If no cancellation charges are set forth
on the first page of this Agreement, then a 25%
non-refundable cancellation charge will apply for
up to 14 days prior to flights, and 100% cancellation
charge will apply if less than 14 days prior to
flights.
Appx9031.
1 CSI emailed its Commercial Price List to the GSA
Contracting Officer on February 27 and then again sent its
Revised Commercial Price List to the Contracting Officer
on March 9, 2009. See Appx9024, 9592. Both versions of the
price list include a “Terms and Conditions” provision, but
the Revised Commercial Price List identifies the specific
version of the CSI Terms and Conditions by date. Compare
Appx9028 (Original Commercial Price List: “CSI Terms
and Conditions with GSA[] will apply to all operations.”),
with Appx9599 (Revised Commercial Price List: “CSI
Terms and Conditions 02/09, or most current, will apply to
all operations.”); see also Appx5299.
Case: 21-1630 Document: 49 Page: 7 Filed: 04/14/2022
CSI AVIATION, INC. v. DHS 7
D
In 2014, U.S. Immigration and Customs Enforcement
awarded CSI five task orders—four on March 27, 2014, and
one on June 2, 2014—through the Schedule Contract for
performance of removal missions out of five domestic air-
port hubs. Including all options and extensions, the orders’
performance periods extended through June 30, 2018.
In June 2017, ICE canceled a scheduled removal flight
and “CSI incurred a deposit loss of approximately $600k
with [the airline provider] due to the short notice cancella-
tion by ICE.” Appx86. The ICE Contracting Officer admit-
ted that the agency was “liable to CSI for the loss of the
deposit” in accordance with “the terms of CSI’s GSA con-
tract,” i.e., the Schedule Contract, and its task order with
ICE. Appx86–87. The ICE Contracting Officer agreed, on
behalf of the agency, to pay a cancellation fee. Appx87. The
Contracting Officer acknowledged that “[t]he GSA contract
[i.e., the Schedule Contract] T&Cs says, ‘CSI Terms and
Conditions will apply to all operations.’” Appx85. At the
CO’s request, CSI shared a copy of the CSI Terms and Con-
ditions with the agency.
Then, on December 7, 2017, CSI tried to perform an-
other removal mission—this one, to Somalia—but it was
unsuccessful and returned to the United States the next
day. ICE scheduled a replacement removal mission, with
an estimated duration of 39.25 hours at $25,065.00 per
flight hour, for December 20, 2017. But, on December 19,
2017, the scheduled flight’s passengers successfully ob-
tained a temporary restraining order enjoining ICE from
removing them. ICE immediately informed CSI and can-
celed the scheduled flight. Consequently, CSI invoiced ICE
for the total estimated amount for the cancelled removal
mission to Somalia, totaling $983,801.25. And, on Febru-
ary 7, 2018, the ICE Contracting Officer “reject[ed] the in-
voice in full because the services were not provided and no
flight hours were flown.” Appx121.
Case: 21-1630 Document: 49 Page: 8 Filed: 04/14/2022
8 CSI AVIATION, INC. v. DHS
1
On November 30, 2018, CSI submitted a certified claim
to the GSA CO 2 for payment of the invoice amount. The
Contracting Officer found that the “Schedule Contract had
incorporated the CSI Terms and Conditions, including a
cancellation clause, providing that a 100% cancellation
charge would apply if the cancellation occurred within four-
teen (14) days of a scheduled flight.” Appx10185. But the
Contracting Officer concluded that it could not grant the
relief CSI sought since “GSA does not have the authority to
grant the monetary relief . . . as [it has] no authority to ei-
ther pay the liability of another agency or order ICE to pay
any amounts that may be owed.” Appx10185.
CSI submitted another certified claim to the GSA Con-
tracting Officer on April 26, 2019, this time for payment of
45 overdue invoices tendered between December 14, 2018,
and February 7, 2019. See Appx1326–29 (listing the in-
voices, corresponding task orders, amounts due, and perti-
nent dates for each invoice). “The amounts [c]laimed in all
the [i]nvoices, collectively totaling $40,284,548.89, equal
the sum value of dozens of aircraft transportation char-
ters . . . purchased by ICE and subsequently cancelled by
ICE less than 14 days before the flights were performed.”
Appx1322. While the Contracting Officer again found that
2 CSI also submitted a certified claim for payment of
the same invoice to the ICE Contracting Officer on July 25,
2018. But only the GSA Contracting Officer can resolve a
contractor’s claims that involve any contract interpretation
dispute associated with the Schedule Contract. See Sharp
Elecs. Corp. v. McHugh, 707 F.3d 1367, 1373 (Fed. Cir.
2013) (“[W]e conclude that the FAR creates a bright-line
rule—all disputes requiring interpretation of the schedule
contract go to the schedule CO, even if those disputes also
require interpretation of the [agency task] order, or involve
issues of performance under the [task] order.”).
Case: 21-1630 Document: 49 Page: 9 Filed: 04/14/2022
CSI AVIATION, INC. v. DHS 9
the CSI Terms and Conditions were “incorporated into the
contract,” it also found that the cancellation charges, “lo-
cated within [the CSI] Terms and Conditions, [were] di-
rectly in conflict with the FAR 52.212-4(l) Termination for
the Government’s Convenience [C]lause (hereinafter ‘Ter-
mination Clause’), which is required in all GSA [schedule]
contracts.” Appx10192 (footnote omitted). The Contracting
Officer explained that since the CSI Terms and Conditions
“were an attachment to the contract buried within its 2008
offer submission,” the incorporated document “fall[s] to the
eighth level . . . when establishing precedence.”
Appx10193. The Contracting Officer decided that the “Ter-
mination Clause takes precedence over CSI’s Commercial
Terms and Conditions, and, particularly, its Cancellation
Charges.” Appx10192–93.
2
CSI appealed the Contracting Officer’s decisions to the
Board and the Board found, on summary judgment, that
the Schedule Contract did not incorporate the CSI Terms
and Conditions by reference. The Board saw “at least three
problems with CSI’s arguments in favor of incorporation.”
Appx8.
First, the Board found significant the fact that the
SF1449 expressly “incorporated and made part of the con-
tract” a list of six documents and that “the CSI Terms and
Conditions never appeared in that list.” Appx8. The Board
faulted CSI for not using such express incorporation lan-
guage for the CSI Terms and Conditions. Second, the Board
found that the phrase “will apply to all operations,” used in
the Commercial Price List to refer to the CSI Terms and
Conditions, was “not the type of phrase that should be read
as expressly incorporating fully into the contract some ex-
trinsic text containing additional contract terms.” Appx9
(cleaned up) (quoting Northrop Grumman Info. Tech., Inc.
v. United States, 535 F.3d 1339, 1347 (Fed. Cir. 2008)). In
the Board’s view, “these first two flaws . . . suffice to show
Case: 21-1630 Document: 49 Page: 10 Filed: 04/14/2022
10 CSI AVIATION, INC. v. DHS
that the CSI Terms and Conditions were not incorporated
in the schedule contract.” Appx9. Still, the Board identified
a third flaw that, it believed, also rendered CSI’s position
unavailing: “the residual ‘ambiguity about the identity of
the document being referenced.’” Appx10 (quoting
Northrop, 535 F.3d at 1344). There was “nothing in the text
of the schedule contract” by which the Board “could . . . lo-
cate without doubt the ‘most current’ version of the CSI
Terms and Conditions at any junction from March 2009 to
2019.” Appx10.
The Board granted the government’s summary judg-
ment motion on January 4, 2021, after concluding that the
Schedule Contract did not incorporate the CSI Terms and
Conditions. The parties then filed a joint motion on Janu-
ary 27, 2021, stating “that they agree that the Board’s Jan-
uary 4, 2021[] decision on a contract interpretation issue
common to [CSI’s] six appeals suffices to support denying
the appeals” and asking the Board “to consolidate the ap-
peals for the purpose of issuing one final and appealable
decision.” Appx13. The next day, the Board granted the mo-
tion, consolidated the six appeals, and denied those appeals
based on its January 4, 2021 decision.
CSI timely appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(10).
II
The issue on appeal is whether the CSI Terms and Con-
ditions are incorporated into the Schedule Contract by ref-
erence. This is a question of law we review de novo.
Northrop, 535 F.3d at 1343.
A
Incorporation by reference “provides a method for inte-
grating material from various documents into a host docu-
ment . . . by citing such material in a manner that makes
clear that the material is effectively part of the host docu-
ment as if it were explicitly contained therein.” Zenon
Case: 21-1630 Document: 49 Page: 11 Filed: 04/14/2022
CSI AVIATION, INC. v. DHS 11
Env’t, Inc. v. U.S. Filter Corp., 506 F.3d 1370, 1378 (Fed.
Cir. 2007) (alteration in original) (citation omitted). To in-
corporate material by reference, “the incorporating con-
tract must use language that is express and clear, so as to
leave no ambiguity about the identity of the document be-
ing referenced, nor any reasonable doubt about the fact
that the referenced document is being incorporated into the
contract.” Northrop, 535 F.3d at 1344. Said differently, “the
language used in a contract to incorporate extrinsic mate-
rial by reference must explicitly, or at least precisely, iden-
tify the written material being incorporated and must
clearly communicate that the purpose of the reference is to
incorporate the referenced material into the contract (ra-
ther than merely to acknowledge that the referenced mate-
rial is relevant to the contract, e.g., as background law or
negotiating history).” Id. at 1345; see also Callaway Golf
Co. v. Acushnet Co., 576 F.3d 1331, 1346 (Fed. Cir. 2009)
(A “mere reference to another [document] is not an incorpo-
ration of anything therein.” (citation omitted)).
Here, the Schedule Contract incorporates the Offer
submitted by CSI during contract negotiations. Neither
party disputes that this document was “made a part of the
contract.” Appx5279. Rather, they disagree as to whether
the Offer uses sufficient language to incorporate the CSI
Terms and Conditions into the Schedule Contract by refer-
ence. We conclude that it does.
The Offer plainly identifies the CSI Terms and Condi-
tions—along with the CSI Commercial Sales Practice at-
tachment, its Pricing Policy, and its Commercial Price
List—in the “Pricing” section of its table of contents.
Appx5289. And the Offer’s Pricing Policy contains a “Terms
and Conditions” provision that expressly states, “CSI
Terms and Conditions . . . will apply to all operations and
are included for reference.” Appx5516. True to its word, a
copy of the CSI Terms and Conditions, dated November
2008, is included as part of the Offer. See Appx5525–27.
Thus, the Offer makes clear the identity of the document
Case: 21-1630 Document: 49 Page: 12 Filed: 04/14/2022
12 CSI AVIATION, INC. v. DHS
being referenced: the document titled “CSI Terms and Con-
ditions.” And, as evidenced by the “Terms and Conditions”
provision in the Offer’s Pricing Policy—which expressly
employs “will apply to all operations” language—the refer-
enced CSI Terms and Conditions apply to at least CSI’s
pricing terms. Apply, Black’s Law Dictionary (11th ed.
2019) (defining “apply” to mean “[t]o employ for a limited
purpose” or “[t]o put to use with a particular subject mat-
ter”). We accordingly hold that the Offer uses sufficiently
clear and express language to establish the identity of the
document being referenced and to incorporate the CSI
Terms and Conditions into the Schedule Contract by refer-
ence.
B
In addition, none of the “flaws” the Board identified
otherwise provides a proper basis for its decision holding
that the Schedule Contract does not incorporate the CSI
Terms and Conditions by reference. See Appx8–10.
First, the Board placed too much weight on the fact
that the Schedule Contract includes express language to
incorporate some documents—like the Offer—and errone-
ously faulted CSI for not “us[ing] the same or similar lan-
guage” to incorporate the CSI Terms and Conditions into
the contract. Appx8. The Board reasoned that CSI’s use of
such language to incorporate some documents “demon-
strate[d] that the parties were familiar with language of
incorporation and likely would have used the same or sim-
ilar language had there been an intention to incorporate
[the CSI Terms and Conditions] into the contract.” Appx8
(cleaned up). In the Board’s view, the absence of such in-
corporation language “at least raises doubt about whether
they intended to incorporate the CSI Terms and Condi-
tions.” Appx8–9. But while the parties’ use of explicit incor-
poration by reference language conveys familiarity with
contract language of incorporation, “[o]ur circuit . . . does
not require ‘magic words’ of reference or of incorporation,”
Case: 21-1630 Document: 49 Page: 13 Filed: 04/14/2022
CSI AVIATION, INC. v. DHS 13
Northrop, 535 F.3d at 1346, and the Board offers no basis
for why it relies on this as one of two dispositive reasons
for finding no incorporation by reference. Indeed, even in
Northrop, the opinion on which the Board relies, we treated
the parties’ familiarity with language of incorporation as a
mere footnote that bolstered our independently established
conclusion. Id. at 1347 n.1.
Second, the Board improperly determined that the
“will apply to all operations” language—used to incorporate
the CSI Terms and Conditions into the Schedule Con-
tract—was “not the type of phrase that should be read as
expressly incorporating fully into the contract some extrin-
sic text containing additional contract terms.’” Appx9
(cleaned up). According to the Board, “[n]o language in the
price list advises a reader to consult any other document to
find additional prices, and ‘all operations’ does not unam-
biguously mean ‘all other pricing issues.’” Appx9. The
Board said that “[i]t could mean that, but it could alterna-
tively refer to something else, such as logistical opera-
tions.” Appx9. The Board, however, offered no basis for its
decision. It asserted only that it had “already ruled that
this [language] was ambiguous” and that it saw “no reason
to change [its] view.” Appx9. But the Board had never made
such a ruling. It had found merely that the “all operations”
language did “not unambiguously mean ‘all other pricing
issues,’” and it had suggested that “it could alternatively
refer to something else, such as logistical operations.”
Appx9 (quoting Appx20). Indeed, the Board had expressly
observed that it could not “interpret what the commercial
price list may say about terminating or cancelling an order
without learning more about the context of the contract lan-
guage.” Appx20–21 (emphasis added). Yet in its later deci-
sion now on appeal, the Board disregarded any such
context. This was error. And when we consider such “con-
text” here, it becomes clear that the Board’s suggestion—
that “all operations” could alternatively refer to “logistical
operations”—is not a reasonable one. That an
Case: 21-1630 Document: 49 Page: 14 Filed: 04/14/2022
14 CSI AVIATION, INC. v. DHS
interpretation of a contract term “is conceivable[] does not
necessarily render that [term] ambiguous.” Cmty. Heating
& Plumbing Co., Inc. v. Kelso, 987 F.2d 1575, 1579 (Fed.
Cir. 1993).
Third, the Board found that “CSI still could not prevail,
due to the residual ‘ambiguity about the identity of the doc-
ument being referenced,’” describing the CSI Terms and
Conditions as “a moving target or, to be more charitable, a
living document.” Appx9–10 (citation omitted). The Board
faulted CSI for “choosing not to reveal the ‘most current’
version of the CSI Terms and Conditions to the Govern-
ment on a continuous basis” and concluded that, as a re-
sult, “CSI created ‘ambiguity about the identity of the
document being referenced’ and defeated its own aim.”
Appx11. We cannot agree. The language the Board refers
to here derives from the Revised Commercial Price List’s
“Terms and Conditions” provision: “CSI Terms and Condi-
tions 02/09, or most current, will apply to all operations.”
Appx5299. Even if there is a dispute as to which version
controls, resolving that dispute is not relevant to deciding
the question before us: whether any version was incorpo-
rated into the contract by reference. 3 The proper inquiry is
3 We find problematic the Board’s seeming presump-
tions that there are uncountable versions of the CSI Terms
and Conditions between 2009 and 2019 and that all such
versions are pertinent to the parties’ contract dispute. In
our view, the Board’s resolution should account for the ef-
fective date of the Schedule Contract, March 10, 2009.
Replacing conjecture with record evidence, we note
that there are only two relevant versions of the CSI Terms
and Conditions found in the record: one dated November
2008, the other February 2009, and both dated before the
contract’s effective date. These versions include identical
language addressing cancellation charges. Compare
Case: 21-1630 Document: 49 Page: 15 Filed: 04/14/2022
CSI AVIATION, INC. v. DHS 15
whether the Schedule Contract employs express and clear
language, “so as to leave no ambiguity about the identity of
the document being referenced, nor any reasonable doubt
about the fact that the referenced document is being incor-
porated into the contract.” Northrop, 535 F.3d at 1344.
The Board unreasonably strained to find ambiguity re-
garding the identity of the referenced document. The Offer
expressly identifies the document titled “CSI Terms and
Conditions” and unambiguously states that such document
will apply to all operations. The Offer’s incorporation lan-
guage, found in its Pricing Policy’s “Terms and Conditions”
provision, refers to the “CSI Terms and Conditions” docu-
ment that was also included as part of the Offer.
III
Because the Schedule Contract, through the incorpo-
rated Offer, unambiguously identifies the CSI Terms and
Conditions and specifies that such terms and conditions
will apply to all operations, we hold that the Schedule Con-
tract incorporates the CSI Terms and Conditions by refer-
ence. We therefore reverse the Board’s holding to the
contrary. And since the Board’s holding was the basis for
its decision to grant summary judgment and dismiss six
consolidated appeals, we vacate that decision and remand
for further proceedings. In doing so, we do not foreclose the
Appx5527 ¶ 16(C) (November 2008 version: “[A] 25% non-
refundable cancellation charge will apply for up to 14 days
prior to flights, and 100% cancellation charge will apply if
less than 14 days prior to flights.”), with Appx9031 ¶ 16(C)
(February 2009 version: “[A] 25% non-refundable cancella-
tion charge will apply for up to 14 days prior to flights, and
100% cancellation charge will apply if less than 14 days
prior to flights.”). We see no basis for the Board to unrea-
sonably strain to find ambiguity between identical copies
of the cancellation charges provision.
Case: 21-1630 Document: 49 Page: 16 Filed: 04/14/2022
16 CSI AVIATION, INC. v. DHS
possibility of finding the CSI Terms and Conditions inap-
plicable for some other reason or that the cancellation pro-
vision is inconsistent with other provisions in the contract,
such as the Termination Clause, but we leave any such pos-
sibility for the parties to raise and the Board to decide on
remand.
VACATED IN PART, REVERSED IN PART, AND
REMANDED
COSTS
No costs.