Government Acquisitions, Inc. v. United States

In the United States Court of Federal Claims No. 25-107 (Filed: 4 August 2026) ************************************** GOVERNMENT ACQUISITIONS, INC, * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant. * * ************************************** Timothy B. Hyland, of Hyland Law PLLC, of Reston, VA for plaintiff. B. Steven Kushnir, Senior Trial Counsel, Commercial Litigation Branch, with whom were Yaakov M. Roth, Acting Assistant Attorney General, Patricia M. McCarthy, Director, Martin F. Hockey, Deputy Director, U.S. Department of Justice, of Washington, DC, and James E. Vaiden, Assistant Counsel, U.S. Navy Fleet Logistics Center. OPINION AND ORDER HOLTE, Judge. Caveat manceps rei publicae. 1 This case presents yet another instance where a plaintiff challenges the government’s conduct related to a contract to no avail. In response to the Navy’s Request for Quotation for Palo Alto Networks software licenses, plaintiff Government Acquisitions, Inc. submitted a Quote structured using one base year with four option years—these option years allowed the Navy to secure favorable pricing for the software licenses without obligating itself to continue paying for the software when it became unnecessary the following year. Plaintiff’s Quote specified, however, “Provided it obtains such sufficient funds, the Government shall exercise all renewal options.” Plaintiff insists the Contract executed between plaintiff and the Navy incorporated the terms from its Quote to the Navy—including this obligation to “exercise all renewal options” for additional years if the government received requisite funding. Plaintiff now challenges the Navy’s decision not to exercise option years to extend plaintiff’s contract for software licensing and support beyond one year despite the obligation in plaintiff’s Quote. In the absence of express language incorporating plaintiff’s Quote into the Contract, the Quote’s terms offer 1 “Let the contractor for the government beware.” plaintiff no sockdolager 2 here. For the following reasons, the Court grants the government’s Motion to Dismiss for Failure to State a Claim. I. Background A. Factual History In April 2023, the Navy Fleet Logistics Center (“the Navy”) issued a request for quotations (“RFQ”) for licenses to use a software developed by Palo Alto Networks. Gov’t’s Mot. to Dismiss (“Gov’t’s MTD”) at 2, ECF No. 9. On 26 May 2023, plaintiff responded with a Quote proposing a contract with one base year and four option years. Id. The Quote comprised terms and conditions, which included this term: Please include the following statement in the gov’t order to GAI: “Government Acquisitions, Inc. Quote No. 152862 dated 5/26/23 is hereby incorporated into this delivery order and made a part hereof.” Compl., Ex. 2 (Plaintiff’s Quote) at 3, ECF No. 1-2. The Quote further provided: The Government has an option to renew this order beyond the initial fiscal year and is obliged to use its best efforts annually to obtain sufficient funds from appropriated and other legally available sources to do so until completion of the order. Provided it obtains such sufficient funds, the Government shall exercise all renewal options. In the event the Government fails to exercise its option to renew this order or fails to use its best efforts to seek and obtain appropriations to support this order in any subsequent fiscal year but expends funds for the functions which the Software was procured to perform, then the Government will be deemed to have had funds available to support this order. In the event this order is terminated, non-renewed or otherwise discontinued prior to the Software being fully implemented, installed and in use by the Government, such termination, non-renewal, or discontinuance shall be deemed a termination for convenience. The rights of the Government to terminate shall apply to the entire delivery order, including any renewals thereof and not allow partial termination of the Software. Id. (emphasis added). On 13 June 2023, the Navy offered plaintiff a proposed delivery order on Standard Form 1449, which plaintiff executed the same day. Compl. ¶ 8, ECF No. 1; see Compl., Ex. 3 (Award Offer), ECF No. 1-3. The delivery order did not include the statements requested by the Quote. See Compl., Ex. 3. Box 29 of the delivery order—which describes the “Award of Contract”—reads in full: “Offer dated 18-May-2023. Your offer on solicitation (Block 5), including any additions or changes which are set forth herein, is accepted as to items: see 2 The Court utilizes “sockdolager” in the same manner as used in Northrop Grumman Comp. Sys., Inc. v. United States, 93 Fed. Cl. 144 (2010), cited infra. Sockdolager: “A final blow or remark; something outstanding.” Sockdolager, The American Heritage College Dictionary (3d ed. 1997). -2- schedule.” Id. at 1. The delivery order, however, did not define “schedule.” See id. After plaintiff noticed the 13 June proposed delivery order contained a typographical error—it noted an offer date of 18 May 2023 when the Quote was actually dated 26 May 2023—plaintiffs contacted the government to fix the error. See Compl. ¶ 8; Compl., Ex. 2 (Plaintiff’s Quote) at 2; Compl., Ex. 4 (Corrected Draft Delivery Order) at 2. Also on 13 June 2023, the government issued a modification to the delivery order, see Compl., Ex. 5 (Contract Modification), to alter the language in Box 29 to clearly reference plaintiff’s Quote with, and then issued a revised delivery order, see Compl., Ex. 4. The modification stated “the purpose of this modification is to change block 29 on the SF-1449 award to ‘Quote No. 152862-1-1 OFFER DATED 26-May-2023.” Compl., Ex. 5 (Contract Modification). Plaintiff signed the modification on 14 June 2026. Id. The Contract 3 further included a plethora of attached pages which specified the software to be provided, outlined the structure of the base and option years, and incorporated by either reference or full text many provisions of the Federal Acquisition Regulations (“FAR”). See Compl., Ex. 3 at 3–37. Among its full-text incorporations, the Contract included FAR 52.217-7, titled “Option for Increased Quantity-Separately Priced Line Item.” Id. at 16. The provision reads, in part, “The government may require delivery of the separately numbered item identified in the schedule as an option item, in the quantity and at the price stated in the schedule.” Id. at 17 (quoting FAR 52.217-7). Box 27b of the Contract also incorporates FAR 52.212-4, which in subsection (l) states “The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience.” Id. at 1; FAR 52.212-4. Plaintiff then provided the software licenses to the Navy for the base year, and Navy paid the initial base term payment. Compl. ¶¶ 18–19; Gov’t’s MTD at 4. Shortly after plaintiff delivered the software on 23 June 2023, the government gave plaintiff a Certificate of Acceptance which stated the software was properly delivered according to “Contract No. NNG15SD23B, including Quote #152862-1-1 dated May 26, 2023.” Pl.’s Resp., Ex. A, ECF No. 12-1. On 24 February 2024, the Navy emailed plaintiff a preliminary notice it intended to exercise the first option year. Compl. ¶ 20. The notice advised it “shall not be deemed to commit the Government to this renewal” and “[o]nly the Contracting Officer has the authority to exercise the option by issuing a modification to the contract in the upcoming future.” Id. On 29 July 2024—a month after the base year ended—the Navy told plaintiff it was not going to exercise the option year. Id. ¶ 21. Plaintiff alleges the Navy then used a different version of the software not procured from plaintiff. See id. ¶ 26. B. Procedural History 3 The Court notes two observations. First, plaintiff’s Exhibit 6 is identical to its Exhibit 3. While plaintiff alleges Exhibit 6 is an Award Delivery Order executed after the correction of Box 29 on 14 June 2023, the Court notes Exhibit 6 was executed on 13 June 2023. Second, while plaintiff states the Contract was formed only after it signed the version of the delivery order with Box 29 corrected and the government asserts the original delivery order signed 13 June 2023 formed the Contract, both parties do not dispute the Contract as comprising the delivery order signed on 13 June 2023, in view of the 14 June 2023 Contract Modification. See generally Gov’t’s MTD at 2–3; Pl.’s Resp. to Gov’t’s MTD (“Pl.’s Resp.”) at 7, ECF No. 12. Notwithstanding this dispute, the Court notes “the Contract” refers to the version of the delivery order with Box 29 corrected. -3-  On 10 September 2024, plaintiff filed a claim with the contracting officer seeking damages. Id. ¶ 31. The contracting officer denied plaintiff’s claim on 4 November 2024. Id. ¶ 32; Compl., Ex. 9. On 21 January 2025, plaintiff filed its Complaint in this Court. See Compl. The government filed a motion to dismiss for failure to state a claim on 2 June 2025, and plaintiff filed its Response in Opposition on 3 July 2025. See Gov’t’s MTD; Pl.’s Resp., ECF No. 12. The government filed a Reply in Support of its Motion to Dismiss. Gov’t’s Reply, ECF No. 14. The Court held oral argument on the government’s motion on 14 February 2026. See Order Scheduling Oral Argument, ECF No. 15. II. Parties’ Arguments The government moved to dismiss for failure to state a claim related to all counts asserted in plaintiff’s Complaint. See Gov’t’s MTD. First, the Court reviews the parties’ arguments related to Counts 1–3, where plaintiff alleges a breach of express terms of the Contract. Id. at 6. Then, the Court summarizes the parties’ arguments related to Count 4, where plaintiff alleges, notwithstanding the breach of express terms of the contract, the government also breached the implied duty of good faith and fair dealing. Id. at 15. Finally, the Court provides a synopsis of the parties’ arguments related to Counts 5–7, which concern three doctrines plaintiff relies on to show it was harmed by the government’s conduct and is thus entitled to damages or equitable relief. Id. at 18–20. A. Counts 1, 2, and 3 for Breach of the Express Terms of the Contract The government’s primary argument is it could not have obligated itself to exercise the option years in the contract because the Anti-Deficiency Act (“ADA”) bars it from obligating money before Congress has appropriated the money for that purpose. Gov’t’s Reply at 2. Further, the government argues plaintiff’s Quote, which contained the terms and conditions purporting to limit the government’s discretion regarding the option years of the contract, was not incorporated into the Contract. Gov’t’s MTD at 12–15. Therefore, the government argues, it never had any obligation to exercise the option years in the contract because the Contract itself only provided for the base year and option years and any obligation to exercise additional years was only present in plaintiff’s unincorporated Quote. Gov’t’s Reply at 11–12. Plaintiff argues even if the ADA applies, the Contract does not violate it because the government can enter contracts for multiple years where: (1) there is “an appropriation available to fund the contract,” and (2) “the government must be able to affirmatively continue the contract for each subsequent year.” Pl.’s Resp. at 16. Plaintiff further argues its offer on the Contract “was expressly conditioned upon including” language stating “[p]rovided it obtains such sufficient funds, the Government shall exercise all renewal options.” Id. at 22–23. Plaintiff argues the terms and conditions attached to its Quote were incorporated into the contract by the language in Box 29 of the Contract. Id. at 25–26. Specifically, plaintiff asserts Box 29 of the Contract states plaintiff’s offer is “accepted as to items: See Schedule,” and argues “[t]he referenced Schedule – which the Government acknowledged that it ‘ACCEPTED,’ was comprised of the pages attached to the standard form 1449, as well as the entire listed offering, including terms and conditions, contained in the Quote.” Id. at 25. In the alternative, plaintiff argues the contract “is ambiguous -4- and susceptible to multiple interpretations” as to whether the obligation to exercise options was incorporated into the contract. Id. at 28. B. Count 4 for Breach of Implied Duty of Good Faith and Fair Dealing Additionally, the government claims it did not violate the implied duty of good faith and fair dealing, saying the duty “cannot expand [its] contractual duties beyond those in the express contract or create duties inconsistent with the contract’s provisions.” Gov’t’s MTD at 16 (citing Precision Pine & Timber, Inc. v. United States¸ 596 F.3d 817, 831 (Fed. Cir. 2010)). The government maintains the Contract’s use of permissive language—referring to exercising the options and incorporating FAR provisions giving the Navy sole discretion to exercise the options—means its conduct was contemplated by the written contract and plaintiff “cannot use the doctrine of good faith and fair dealing to complain of the very conduct that the contract expressly permits.” Id. at 16–17. Plaintiff responds it “alleged that the Navy entered into, and induced [plaintiff] into affording it favorable terms under, the Contract by representing that ‘No other brand or product on the market today will meet [the Navy’s] needs’ and that ‘[n]o competitive functional replacement product exists in the market at this time to meet the Government’s needs’ – statements were false and known by Navy to be false when made, since it already had identified the Replacement Software, and it was different software from a different licensor.” Pl.’s Resp. at 33 (citations omitted). Plaintiff disputes the Contract is “automatically void under the ADA,” and the government’s representations “the Quote and its payment terms were incorporated in the Contract” and argues subsequent repudiation by failing to exercise the option years violated the implied duty. Id. at 34–35. C. Counts 5, 6, and 7 for Superior Knowledge, Constructive Termination for Convenience, and Equitable Adjustment The government further contends the superior knowledge doctrine is inapplicable in this case, as the alleged “superior knowledge”––referring to plaintiff’s claim the government knew it was going to replace the software after one year of the contract––could not have been “vital” to plaintiff’s performance because the contract was a one-year contract with four option years. Gov’t’s MTD at 18. Plaintiff argues it has sufficiently alleged a breach of the superior knowledge covenant because it alleged “the Navy concealed the fact that at the time of contracting it already had identified and mandated the acquisition” of software elsewhere. Id. at 36 (citing Compl. ¶ 62). “Had [plaintiff] known this information,” plaintiff argues, it “would not have contracted to provide Navy with the Software payable at steep discounts over multiple years with nonrenewal risk.” Id. (citing Compl. ¶ 63). The government further argues plaintiff’s allegation of constructive termination for convenience is inapplicable because the contract did not require the government to exercise option years. Gov’t’s MTD at 19. While termination requires “an affirmative act by the procuring agency to stop future performance,” the “[g]overnment is not alleged to have stopped GAI from performing any contractual obligations; it simply allowed the Contract to lapse by declining to extend it beyond the base year.” Id. Plaintiff argues it sufficiently alleged a claim for “constructive termination for convenience” because “the failure to exercise any of the option years could be properly classified as a constructive termination for convenience.” Pl.’s Resp. at -5- 37. Plaintiff argues “[b]y failing to renew the option years, the Navy’s conduct ran counter to the plain meaning of the Contract and the terms” requiring the Navy to exercise option years where it obtains sufficient funds. Id. Lastly, the government argues plaintiff is not entitled to an equitable adjustment for two reasons. First, plaintiff’s theory of liability “is . . . based on the assumption that the Contract required the Government to exercise option years, which is incorrect.” Gov’t’s MTD at 20. Second, “the equitable adjustment clause incorporated by reference into the Contract, FAR 252.243-7002, permits equitable adjustments only when a change mandated by the procuring agency causes the contractor to incur additional costs.” Id. (cleaned up). Here, the government argues, “the Navy made no changes to the Contract’s requirements, which provided only for a 12-month base period of performance.” Id. Plaintiff did not respond to this argument in its response. See generally Pl.’s Resp. III. Applicable Law Under the Rules of the Court of Federal Claims (“RCFC”) 12(b)(6), a plaintiff’s claim must be dismissed when the facts pled do not entitle them to a legal remedy. Boyle v. United States, 200 F.3d 1369, 1372 (Fed. Cir. 2000). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “To recover for breach of contract, a party must allege and establish: (1) a valid contract between the parties, (2) an obligation or duty arising out of the contract, (3) a breach of that duty, and (4) damages caused by the breach.” San Carlos Irr. & Drainage Dist. v. United States, 877 F.2d 957, 959 (Fed. Cir. 1989). If a plaintiff alleges the violation of a contractual duty, damages may be recovered. Id. at 960. One exemption relevant to alleged breaches of government contracts is the Anti-Deficiency Act, which prevents agents of the United States from contractually obligating the government to pay an amount in a contract beyond what is appropriated by Congress. Hercules Inc. v. United States, 516 U.S. 417, 427 (1996); see also 31 U.S.C. § 1341 (“An officer or employee of the United States Government . . . may not[] (A) make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation; (B) involve [the] government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law.”). Accordingly, if an appropriation has not yet been made or an expenditure calls for more money than has been appropriated, the ADA releases the government from liability. See id. IV. Whether Plaintiff’s Quote Requiring the Government to Exercise all Option Years is Incorporated into the Contract The Court starts with Counts 1–3 of plaintiff’s Complaint, alleging a breach of express contractual terms given the government did not exercise all option years. Though the Contract itself did not require the government to exercise the four option years, plaintiff argues its Quote—which stated “the Government shall exercise all renewal options”—is incorporated by -6- reference into the Contract. 4 Given this obligation, and because the government did not exercise the option years, plaintiff contends the government expressly breached the Contract. At oral argument plaintiff agreed for Counts 1–3 of its Complaint to survive the government’s Motion, “the [C]ourt would have to find that [plaintiff’s] [Q]uote was binding and incorporated into the contract.” 18 February 2026 Oral Arg. Tr. (“Tr.”) at 66:20–24, ECF No. 17. As a result, the Court first considers whether the Contract expressly incorporated by reference plaintiff’s Quote through the language in Box 29 (which detailed the Award of Contract) or the Certificate of Acceptance. Second, the Court examines whether incorporating plaintiff’s Quote to make the additional years mandatory conflicts with the Contract’s characterization of the additional years as options. Third, the Court analyzes whether the FAR provisions expressly incorporated into the contract support the additional years as mandatory or optional. Fourth, and finally, the Court considers whether the Contract terms are ambiguous, and if yes, whether plaintiff may introduce additional evidence of intent to incorporate plaintiff’s Quote in the Contract. A. Whether the Contract Expressly Incorporates by Reference Plaintiff’s Quote Terms into the Contract The Court first considers whether the Contract incorporates plaintiff’s Quote terms into the Contract. Plaintiff argues Box 29’s statement “your offer . . . is accepted as to items: see schedule” expressly incorporates the Quote terms because the “schedule” includes the “entire listed offering, including terms and conditions, contained in the Quote.” Pl.’s Resp. at 25. Alternatively, plaintiff argues the Certificate of Acceptance given to plaintiff on 23 June 2023 states the quote is “included” in the Contract. Id. at 25–26. The government asserts Box 29 could not incorporate the Quote into the contract because it neither “explicitly” identifies the quote nor “clearly communicates” an intent to incorporate it. Gov’t’s MTD at 13–14. “‘[C]ontract interpretation begins with the language of the written agreement.’” Beacon Point Assocs. LLC v. Dep’t of Vet. Affairs, 139 F.4th 1306, 1309 (Fed. Cir. 2025) (quoting NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004)). “‘To incorporate material by reference, “the incorporating contract must use language that is express and clear, 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 incorporated into the contract.”’” Id. (quoting CSI Aviation, Inc. v. Dep’t of Homeland Sec., 31 F.4th 1349, 1355 (Fed. Cir. 2022) (further quoting Northrop Grumman Info. Tech., Inc. v. United States, 535 F.3d 1339, 1344 (Fed. Cir. 2008))). “Thus, to incorporate extrinsic material by reference, a contract (1) ‘must explicitly, or at least precisely, identify the written material being incorporated and [(2)] must 4 As discussed supra, on 13 June 2023, the parties originally executed a Contract which, in Box 29 (detailing the Award of Contract), specified an “offer dated 18 May 2023” without referencing plaintiff’s Quote. See Compl., Ex. 6 at 2 (the Contract); see Tr. at 6:5–7:1. Realizing the offer date was incorrect, the parties executed a contract modification the next day to alter Box 29 to specify the correct Quote date and include plaintiff’s Quote number. See Compl., Ex. 5 at 2 (14 June Contract Modification). Only Box 29 was affected by the 14 June modification. See Compl., Ex. 5 at 2; Tr. at 7:22–8:2. The parties did not sign a revised version of the Contract, and proceeded under the 13 June 2023 Contract as modified by the 14 June modification. -7- clearly communicate that the purpose of the reference is to incorporate the referenced material into the contract.’” Id. (quoting Northrop, 535 F.3d at 1345). As Box 29 is the only location in the Contract where plaintiff’s Quote is mentioned, the Court begins by reviewing the language of Box 29. As modified, Box 29 states, in full: 29. AWARD OF CONTRACT REF. Quote No. 152862-1-1 OFFER DATED 26-May-2023. YOUR OFFER ON SOLICITATION (BLOCK 5), INCLUDING ANY ADDITIONS OR CHANGES WHICH ARE SET FORTH HEREIN, IS ACCEPTED AS TO ITEMS: SEE SCHEDULE. Compl., Ex. 6 (the Contract) at 1, Ex. 5 (Contract Modification) at 1. The Contract in Box 29 does explicitly identify the Quote by stating the Quote number, but Box 29 does not “clearly communicate” an intent to incorporate anything into the Contract and introduces “reasonable doubt about the fact that the referenced document is being incorporated into the contract.” See Beacon Point, 139 F.4th at 1309. Specifically, Box 29’s bare reference to plaintiff’s Quote does not state the quote is incorporated into the Contract, nor does it include language demonstrating “the purpose of the reference is to incorporate the referenced material.” Id. In contrast, in Box 27, lines 27a and 27b both state they “incorporate by reference FAR 52.12-4.” Compl., Ex. 6 (the Contract) at 1, Ex. 5 (Contract Modification) at 1. As another example, pages 9 to 16 of the Contract enumerate “clauses incorporated by reference” and “clauses incorporated by full text.” See Compl., Ex. 6 (the Contract) at 9–16. While Box 27 and numerous pages of the Contract clearly communicate an intent to incorporate FAR provisions into the Contract, there is no language in Box 29 explicitly incorporating plaintiff’s Quote or demonstrating an intent to do so. Although plaintiffs correctly argue “magic words” are not required for incorporation by reference, Tr. at 57:16–23, “a contract must use clear and express language of incorporation,” Beacon Point, 139 F.4th at 1309. Considering Box 29 is the only location where the Quote is mentioned, and because there is no “clear and express language” incorporating the terms of the Quote into the Contract, Box 29 does not explicitly incorporate by reference the terms of plaintiff’s Quote—including the government’s requirement to exercise all renewal options—into the Contract. See Beacon Point, 139 F.4th at 1309. Plaintiff also relies on Box 29 to state the “schedule” referred therein also incorporates plaintiff’s Quote. Box 29 concludes plaintiff’s offer is “accepted . . . as to items: see schedule.” Compl., Ex. 6 (the Contract) at 1, Ex. 5 (Contract Modification) at 2 (emphasis added). The “schedule” referenced in Box 29 is the additional pages attached to the Standard Form 1449 contract. See Compl., Ex. 6 (the Contract) at 3–36. These additional pages include columns of information listing items, quantities, pricing, and delivery dates concerning plaintiff’s delivery schedule—comporting with the Contract’s description of a “schedule of supplies/services” in Box 20 and Box 20’s own reference to a “schedule” on the Contract form. See id. at 1–2. While plaintiff agrees Box 29’s reference to a “schedule” at least includes the pages attached to the Contract, plaintiff insists “schedule” also includes plaintiff’s Quote. See Tr. at 42:20–42:24 (“THE COURT: You agree that the ‘schedule’ is the following pages, the attachments to the contract? [PLAINTIFF]: I think the schedule is the pages that follow and whatever is incorporated into it, which would include the quote.”). Plaintiff’s Quote, unlike the schedule of supplies/services, is not attached to the Contract, and there is no further reference to plaintiff’s -8- Quote outside Box 29. See Compl., Ex. 6 (the Contract). While plaintiff agrees there is no statement in the Contract specifically incorporating plaintiff’s Quote, see Tr. at 59:7–60:16, plaintiff argues the “schedule” actually includes “the entire listed offering,” including plaintiff’s Quote, see Pl.’s Resp. at 25. Plaintiff, however, cites nothing in support of this expansive definition of “schedule.” See id. Specifically, plaintiff asserted “[t]here’s nothing that defines the schedule, but . . . certainly, there is a schedule attached to the delivery order.” Tr. at 14:20– 25. Given there is no definition for schedule, and because the Quote was not attached to the delivery order (contrary to plaintiff’s assertion the schedule is attached to the delivery order), the schedule did not incorporate by reference plaintiff’s Quote. Accordingly, in the absence of language “clearly communicat[ing] that the purpose of the reference” to plaintiff’s Quote in Box 29 is “to incorporate the referenced material,” Box 29’s reference to the schedule could not have incorporated the terms and conditions found in plaintiff’s Quote into the contract. Beacon Point, 139 F.4th at 1309. Plaintiff further argues Box 29’s statement plaintiff’s “offer . . . is accepted” necessarily means the terms and conditions contained in the quote were accepted and made a part of the Contract. See Pl.’s Resp. at 7. Although Box 29 states plaintiff’s “offer on Solicitation (Block 5), including any additions or changes which are set forth herein, is accepted as to items: see schedule,” the FAR and the Contract itself clarify plaintiff’s Quote does not constitute an offer. See Compl., Ex. 5 (Contract Modification) at 1, Ex. 6 (the Contract) at 1. First, FAR 13.004(a) declares a plaintiff’s “quotation is not an offer and, consequently, cannot be accepted by the Government to form a binding contract.” FAR 13.004(a). Rather, an “order is an offer by the Government to the supplier to buy certain supplies or services upon specified terms and conditions” and “[a] contract is established when the supplier accepts the offer.” Id. The government, therefore, could not have simply accepted plaintiff’s Quote as an offer outright; rather, in response to plaintiff’s Quote, the government made an offer to plaintiff that plaintiff then accepted. See id. Second, even if the government could have simply accepted plaintiff’s Quote, Box 29 clarifies an offer is accepted “as to items” and “including any additions or changes which are set forth herein.” Compl., Ex. 6 (the Contract) at 1; Compl., Ex. 5 (Contract Modification) at 1. To the extent the government could accept plaintiff’s Quote, by accepting it including any other terms set forth and only “as to items: see schedule,” the government only accepted plaintiff’s Quote insofar as it was reflected by the terms contained within the Contract and attached schedule. In either case, the result is the only agreement the government entered into was for the services according to the terms specified by the Contract itself, and those from plaintiff’s Quote. In addition to arguing Box 29 of the Contract incorporates plaintiff’s Quote, plaintiff asserts the Certificate of Acceptance given to plaintiff upon the government’s acceptance of the software delivery “explicitly confirms that the Quote is part of the Contract.” Pl.’s Resp. at 23. The Certificate of Acceptance was signed on 23 June 2023 to confirm the software was delivered and accepted, and it included the following language: Certificate of Acceptance related to Order No. N0018923F0521 dated June 13, 2023 and Amendment/Modification dated June 13, 2023 with identifying Modification Control Number: nnzjdh042310606 each issued by NAVSUP FLC Norfolk Contracting to Government Acquisitions, Inc. (“Contractor”) for use by -9-  Navy Information Operations Command (“User”) pursuant to Contract No. NNG15SD23B, including Quote #152862-1-1 dated May 26, 2023 . . . . Pl.’s Resp., Ex. A at 1 (emphasis added). According to plaintiff, the reference to the Contract as “including” the 26 May Quote is sufficient to confirm the Quote was incorporated into the Contract. See Pl.’s Resp. at 23. Plaintiff’s argument is wrong for two reasons. First, the Certificate of Acceptance is not a part of the Contract—the Certificate merely confirms the Navy’s receipt of goods from plaintiff and was created after the software was delivered in performance of the Contract. Moreover, while the Contract was signed on 13 June 2023 (then modified on 14 June 2023), see Compl., Ex. 5 (Contract Modification) at 1, Ex. 6 (the Contract) at 1, the Certificate of Acceptance was signed 10 days later on 23 June 2023, see Pl.’s Resp., Ex. A at 1. Although plaintiff insisted at oral argument it is “hornbook law . . . documents that are executed in close proximity in time with respect to the same subject matter, all comprise the same contract,” Tr. at 62:17–20, plaintiff’s counsel was “not prepared” to cite any hornbooks or cases to this effect at oral argument, nor did any appear in the briefing, Tr. at 61:6–14. Critically, while the Contract was signed by a representative of plaintiff and the contracting officer, the Certificate was signed only by a Chief Warrant Officer grade 4 in the Navy, so the Certificate of Acceptance was not executed by both parties, belying plaintiff’s assertion the Certificate comprises part of the Contract. Compl., Ex. 5 (Contract Modification) at 1, Ex. 6 (the Contract) at 1; Tr. at 62:17–20. Plaintiff cites no authority to include the Certificate of Acceptance into the Court’s interpretation of the Contract, and the Federal Circuit has consistently stated incorporation requires “the language of the contract” to expressly and unambiguously incorporate material by reference, not “extrinsic evidence.” Beacon Point, 139 F.4th at 1339; see also Northrop Grumman Info. Tech., Inc. v. United States, 535 F.3d 1339, 1344 (Fed. Cir. 2008) (“[T]he incorporating contract must use language that is express and clear, 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 incorporated into the contract.”) (first emphasis added). Second, even if the Certificate was construed to be part of the Contract, there is no language in the Certificate “clearly communicat[ing] that the purpose of the reference is to incorporate the referenced material into the contract,” and raises “reasonable doubt about the fact that the referenced document is being incorporated into the contract.” Beacon Point, 139 F.4th at 1309. Without language in the Contract (or the Certificate of Acceptance) clearly and unambiguously demonstrating intent to incorporate specific material by reference, and without any precedent or record evidence showing the Certificate of Acceptance should be considered part of the Contract, plaintiff cannot enforce any provision of its Quote’s terms and conditions which does not independently appear in the Contract it signed with the government. See Beacon Point, 139 F.4th at 1310 (“If [plaintiff] intended to vary the terms of these FAR clauses by incorporating its Quote’s terms and conditions into the contract, it should have ensured that the contract expressly identified that the Quote’s terms and conditions were incorporated into the contract.”). B. Whether the Contract Characterizes the Additional Performance Years as Optional or Required The Court next examines whether the Contract characterizes the additional performance years as optional or required. Each performance year in the Contract is listed in the schedule of - 10 - supplies/services, and under the “ITEM NO” description for each performance year except the base year is marked “OPTION.” Compl., Ex. 6 (the Contract) at 3–8. Further on, the Contract includes a Statement of Work which splits the “period of performance” into one base year running from June 2023 to June 2024, and four “option year[s].” See id. at 31. The Contract’s “total award amount” in Box 26 also lists the award as “$1,104,569,” which is the amount due for only the base year, not including the additional performance years marked “option.” Compl., Ex. 6 (the Contract) at 1, 3 (listing base year amounts as $621,319.80 for software subscription and $483,249.20 for support services). Plaintiff alleges “[t]he Contract obligated Navy to acquire the Software for a base year and four subsequent one-year option periods and, in accordance with that obligation, Navy agreed to make payments to [plaintiff] under the Contract over the four-year period, subject to appropriations.” Compl. ¶ 12 (emphasis added). Plaintiff argues “the word ‘option’ does not necessarily connote and does not here connote absolute discretion and the ability to exercise or not exercise” the option. Tr. at 22:21–24; see also Pl.’s Resp. at 26 n.7 (“While the Government is correct that ordinarily the Government ‘may’ extend the term of a contract by exercising an option, in this case the Government ‘must’ exercise the options.”). Plaintiff, however, agreed at oral argument “if the government has an option to renew the contract, then it is not required” and confirmed “[a]s a matter of course, an option is just that, discretionary.” Tr. at 17:17–18:4. Looking to harmonize these conflicting statements, plaintiff insists the government may “cabin or curb” its discretion to exercise an option through contract provisions, relying on Government Systems Advisors v. United States, 847 F.2d 811, 813 (Fed. Cir. 1988). Tr. at 17:20–18:4, 31:10– 33:14. In Government Systems, the Federal Circuit held a provision of a contract for data processing systems “plainly states that the contract is renewable at the option of the Government” and “nothing in [the contract] limited the circumstances under which the government could decline to exercise” the option. Gov’t Sys. Advs., 847 F.2d at 813 (internal quotations omitted). Plaintiff argues the Federal Circuit’s statement “nothing in [the contract] limited the circumstances under which the government could decline to exercise” the options in that case proves the government could limit its own ability to decline the option years here by contractual provision. Even assuming the government could limit its own discretion, however, the issue is whether the government did limit its discretion in the Contract. The Contract consistently refers to all years except the base year as options, and no specific provision on the Contract suggests any other interpretation than the government retained its discretion whether to exercise those options. Compl., Ex. 6 (the Contract) at 1 (noting total contract award is equal to the base year price), 3–8 (describing all years except the base year as “OPTION”), 31 (listing, as the period of performance in the Statement of Work, one base year followed by four option years); see also Gov’t Sys. Advs., 847 F.2d at 813 (“An option is normally an option, and nothing in [the contract] limited the circumstances under which the government could decline to exercise that bargained-for right in this case.”). Accordingly, the Contract’s consistent reference to the additional performance years as “options” reinforces the conclusion the government retained discretion whether to continue the Contract for the additional years. See id. C. Whether the FAR Provisions Expressly Incorporated into the Contract Support the Government’s Discretion to Not Exercise the Additional Performance Years - 11 -  The Court next examines the FAR provisions expressly incorporated into the Contract to determine whether they support the government’s discretion to exercise the additional optio