Government Contracts Monitor

Neither Glossy Nor Delustered Film Can Obscure The Plain Language Of A Government Contract

April 5, 2013

When a claim for equitable adjustment comes down to the qualitative and cost differences between clear and delustered laminate film, sometimes you just have to wonder whether the contractor’s ability to read the plain language of her contract was obscured by the shiny laminate she used.  The recent case of Christine Baldridge, v. Government Printing Office, No. 2012-6001 (Fed. Cir. March 12, 2013), clarified the situation on an appeal from the GAO Contract Appeals Board.

The background facts are straightforward.  The contractor responded to an Invitation for Bids for lamination services for the Government Printing Office (“GPO”) by submitting a bid that undercut the next lowest bidder by 18%. The contractor fielded orders from 2004 until the contract expired in 2005, and continued to process open orders (with the GPO’s permission) until 2007.  On August 24, 2010, the contractor submitted a claim to the contracting officer for equitable adjustment in the amount of $38,299.28. The contractor complained that her original bid had been predicated upon the mistaken belief that the GPO would accept orders that were laminated using clear laminate film. The GPO, however, expected all orders to be laminated using film with a less glossy finish, and this allegedly led to unexpected additional costs for the contractor.  The Board denied the contractor’s claim for equitable adjustment and she appealed to the Federal Circuit.

The Federal Circuit made quick work of the contractor’s appeal.  First, the appellate court read the plain language of the contract (apparently unobscured by any high gloss lamination that must have been found on the contractor’s copy) to find no ambiguity as to what the GPO wanted from its lamination service providers – a delustered laminate film.  Second, even if the contract language could be construed as ambiguous, the Federal Circuit deemed any alleged ambiguity to be “patent.”  The Court then held, “When presented with such a glaring ambiguity, the government contractor has a duty to inquire of the contracting officer as to the language’s true meaning before submitting a bid.  If the contractor fails to do so . . . we must construe the patently ambiguous contract language against her.”  Slip Op. at 6 (citations omitted).

So, after stripping away the shiny (or delustered) veneer of this case, the two take aways are:  (1) read the solicitation materials very carefully before submitting any bids; and (2) if those materials contain any obvious ambiguities, ask for clarification from the procuring agency before developing your proposal.

 

Michael J. Schrier is the attorney responsible for the content of this article.