Payne Hackenbracht & Sullivan
Ambiguity
Ambiguous plans and specifications are an area fraught with the potential for later claims and appeals. A provision is ambiguous if it is capable of two or more meanings. If you are aware of such an ambiguity, you are required to bring it to the government's attention prior to bidding, or face the same waiver defense as in the case of a failure to raise an obvious error or omission prior to bid opening. The issue often is whether the ambiguity was truly obvious (patent) or whether it was hidden, or unknown (latent), thereby excusing you from failure to raise it at the time of bidding. The answer, of course, varies with the facts of each particular case, but it is often helpful to remind government procurement officials that what appears obvious during construction, when great scrutiny is being given to that part of the plans and specifications at issue, is often unnoticed during the short time frame available during the bidding period.
A contractor faced with an ambiguity which he had no reason to anticipate at the time of bidding is entitled to an equitable adjustment of the contract for any additional costs he incurs as a result of the ambiguity. Thus, if the government insists on an interpretation of an ambiguous specification which is different from the interpretation placed upon that provision by the bidder (contractor), the government will be liable for the extra costs. In this event, it is only necessary for the contractor to demonstrate that his interpretation of the specification was a reasonable one. It need not be the best interpretation, the least expensive interpretation, the most intelligent interpretation, or the interpretation which the government favored. It need only be reasonable. In the last analysis, a latent ambiguity is construed against the drafter of the contract.