ASBCA Holds that Transmission Emails are "Part of the Same Transaction" as Mods for Plain Meaning Purposes

Can contractors reserve rights in a transmission email while executing a contract modification that is silent on such reservation? The ASBCA recently affirmed again that yes, contractors can. In NMS Management, Inc., ASBCA No. 61519 (Apr. 11, 2019), a dispute over the “improper attempt at a partial exercise” of an option period, the ASBCA rejected the Government’s argument that NMS was strictly bound by the terms of a signed bilateral modification – viewed in isolation – because NMS’s accompanying transmission email stated that it was signing under protest. The ASBCA clarified the plain meaning rule by citing precedent that the “interpretation of a contract as a whole requires consideration of all documents that are part of the same transaction together.” The Board held that “the [transmission] email dispels any notion that Modification No. P00011 is the only writing to consider when evaluating the legal consequences of the modification.”