Payne Hackenbracht & Sullivan
Ambiguity - Claims
In analyzing a claim arising from a contractual ambiguity, the Board must first determine whether the ambiguity was so obvious as to require the contractor to seek clarification prior to submitting its bid. See Newsom v. United States, 676 F.2d 647 (Ct.Cl. 1982). The most critical factor in determining the nature of an ambiguity is the degree of scrutiny reasonably required of a bidder. Transco Contracting Co., ASBCA 25315, 82-1 BCA 15,516 (1981). Although each determination must be made on an ad hoc basis with consideration to what a reasonable man would find to be patent and glaring, Max Drill, Inc. v. United States, 427 F.2d 1233, 1244 (Ct.Cl. 1970), an analysis of contract language based on hindsight will not be persuasive, Gorn Corp. v. United States, 424 F.2d 588 (Ct.Cl. 1970).
The courts have consistently held that a patent ambiguity giving rise to the duty to inquire will be found only where there is an obvious drafting error, a gross discrepancy or a glaring gap in the specifications and drawings. See, e.g., W.P.C. Enterprises, Inc. v. United States, 323 F.2d 874 (Ct.Cl. 1963). The court's comments in Blount Brothers Construction Co. v. United States, 346 F.2d 962 (Ct.Cl. 1965) are particularly instructive in this regard:
Contractors are businessmen, and in the business of bidding on Government contracts they are usually pressed for time and are consciously seeking to underbid a number of competitors. Consequently, they estimate only on those costs which they feel the contract terms will permit the Government to insist upon in the way of performance. They are obligated to bring to the Government's attention major discrepancies or errors which they detect in the specifications or drawings, or else fail to do so at their peril. But they are not expected to exercise clairvoyance in spotting hidden ambiguities in the bid documents, and they are protected if they innocently construe in their own favor an ambiguity equally susceptible to another construction.
Thus, a contractor is not required to seek clarification of all possible differences in interpretation or of subtle ambiguities. See W.P.C. Enterprises, supra; H & M Moving, Inc. v. United States, 499 F.2d 660 (Ct.Cl. 1974).