GRANTED IN PART: October 4, 2019
CBCA 6539
HARRY L. CHUPNICK,
Appellant,
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent.
Harry L. Chupnick, pro se, Reisterstown, MD.
Brandon Dell’Aglio and Alice Somers, Office of the General Counsel, Social Security
Administration, Baltimore, MD, counsel for Respondent.
CHADWICK, Board Judge.
The Board handled this appeal under the small claims procedure of Board Rule 52 (48
CFR 6101.52 (2018)) at the appellant’s election.  This decision “is final and conclusive, shall
not be set aside except for fraud, and is not precedential.”  Rule 52(c).  
The appellant, Mr. Chupnick, recovers $720 plus statutory interest.  The award is not
reduced by the overpayment credit sought by the respondent agency.
Mr. Chupnick is a verbatim hearing recording contractor for the Social Security
Administration under task orders issued pursuant to blanket purchase agreement (BPA)
SS03-12-40003.  On February 1, 2019, he mailed the contracting officer a claim under the
Contract Disputes Act, 41 U.S.C. §§ 7101–7109 (2012), for $5760.  In the absence of a
return receipt, we find that the agency received the claim on Monday, February 4. 


CBCA 6539 2
Mr. Chupnick filed this appeal from a deemed denial of his claim in June 2019.  He argues
that he was not properly paid for recording hearings at which an administrative law judge
spoke but no witness testified under oath.  The parties briefed this contractual issue in
September 2019.
To decide entitlement, we must apply the rule that a government contractor has a
“duty to inquire” about a “patent” or obvious ambiguity before signing a contract.  “Absent
such inquiry, a patent ambiguity in the contract will be resolved against the contractor.” 
Triax Pacific, Inc. v. West, 130 F.3d 1469, 1475 (Fed. Cir. 1997).  The BPA is patently
ambiguous because it does not conclusively address the situation at issue in this case.
The BPA states that the agency will pay the contractor $5 per hearing in three
circumstances.  The first two are situations in which it is clear before the scheduled day that
the hearing will not take place.  We do not address those situations.  The third circumstance
is when the contractor “suppl[ies] a digital recording” after “the hearing was not held as
scheduled because the claimant/representative failed to appear, or requested representation.”
The BPA states that the agency will pay the contractor $50 in two situations.  The first
is if the contractor “delivers a final product” recording.  Mr. Chupnick does not rely on that
provision.  The second circumstance is when “the hearing was convened and testimony was
taken, but not complete.”  Mr. Chupnick and the agency now agree that his claim
encompasses 122 hearings for which the agency paid $5, but he argues he should be paid
$50.  The agency agrees to pay the $50 fee for sixteen of those hearings.
In the other 106 hearings, the judges spoke briefly to the claimants on the record about
how to proceed, but no one was sworn in, the hearings were adjourned, and Mr. Chupnick
delivered a recording.  Mr. Chupnick argues that the word “‘[t]estimony’ in the BPA is non-
defined and vague” but that, under an ordinary definition, an “entire hearing even when the
claimant is not sworn in is testimony,” entitling him to the $50 fee for his recordings.  The
agency argues that it and Mr. Chupnick “agree on how to interpret the BPA” but simply
disagree as a matter of fact about whether “testimony was taken” at the 106 hearings.  This
is not a helpful argument.  As Mr. Chupnick recognizes, he and the agency obviously
disagree about what the BPA means by “testimony . . . taken, but not complete.”
Mr. Chupnick cannot win that argument because he is correct that the language of the
BPA does not settle the issue on its face.  None of the five circumstances listed in the BPA
for payment of the $5 fee or the $50 fee is exactly the situation at issue here.  A hearing at
which a judge speaks briefly to the parties but does not swear anyone in could be considered
either a “hearing [that] was not held as scheduled” under the $5 provision, or a “hearing
[that] was convened . . . but not complete[d]” under the $50 provision.  Ordinarily, a judge

CBCA 6539 3
would not consider an unsworn conversation for the record “testimony,” which weighs
against Mr. Chupnick’s reading of the BPA.  The important point, however, is that we need
not resolve this issue because the ambiguity or vagueness is patent in the words of the BPA. 
When this is the case, a bidder must ask for clarification before accepting a contract.  When
the contractor did not do so, courts and boards rule for the Government “regardless of the
reasonableness of the contractor’s interpretation.”  Fortec Constructors v. United States, 760
F.2d 1288, 1291 (Fed. Cir. 1985). 
Mr. Chupnick therefore recovers no additional fees for the 106 hearings at which no
one was sworn in to testify.  He is owed an additional $45 for each of the sixteen hearings
at which someone was sworn in.
The agency argues that it is “entitled to a set-off”of $135 for three hearings for which
it says it should have paid Mr. Chupnick $5 but paid him $50.  There is no government claim
before us in this appeal.  We have no basis to grant the agency any relief.
Decision
We GRANT IN PART the appeal and award Mr. Chupnick $720 plus interest under
41 U.S.C. § 7109 from February 4, 2019, to the payment date.
  Kyle Chadwick             
KYLE CHADWICK
Board Judge