Government Contracts Monitor

Patent Ambiguity Doctrine Is A Lot Like Obscenity: “I Know It When I See It”

August 19, 2013

You are a government contractor.  You receive a solicitation.  You read it carefully and begin crafting detailed technical and price proposals.  You come across a paragraph or two that, when read together, appear inconsistent or even in conflict.  What should a government contractor do:  try to take advantage of the ambiguity in a post-award bid protest if you don’t win the contract or seek clarification before the bid submission date?

The correct answer is to seek clarification.  Under the law of commercial contracts, the general rule is that any ambiguity is to be construed against the party that drafted the ambiguity.  In federal government contracts, the commercial rules do not always apply.  It is possible, in some cases, that a government contractor may be able to take advantage of a hidden – or latent – ambiguity by construing it against the government, but only in situations where the contractor can show reliance on its “reasonable interpretation” of the allegedly ambiguous provision.  However, in the case of an obvious – or patent – ambiguity, the contractor has a duty to seek clarification from the government and failure to do so prevents the contractor from raising an ambiguity argument after contract award.  

This begs the ultimate question – what is a patent ambiguity?  The federal courts have spilled much ink trying to identify patent ambiguities in a variety of cases and settings.  The answer to this question, distilled to its essence, is much like the famous quote from Supreme Court Justice Potter Stewart where he said, with regard to pornography or obscenity, “I know it when I see it.”  Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).  A patent ambiguity in a government solicitation is loosely defined as one that is “obvious, gross, [or] glaring” or involves “facially inconsistent provisions” that would “place a reasonable [offeror] on notice” of a conflict or discrepancy.  In other words: “I know it when I see it.”  However, a patent ambiguity is not determined by what you actually think is ambiguous, but instead is based on what a “reasonable offeror” would have perceived to be patently ambiguous.

Given this loose standard, if you find two solicitation provisions in apparent conflict, chances are it may be classified as a patent ambiguity.  In that situation, it is prudent to seek clarification from the government as soon as possible.  If the government does not modify the solicitation or otherwise address the patent ambiguity, then it may be possible to file a pre-award bid protest challenging the solicitation itself.  However, if an offeror adopts a “wait and see” approach and then attempts to challenge the contract award based on a patent ambiguity only after losing the award, the offeror will likely also lose any such bid protest.

Bottom line: when something in a solicitation looks like it might be ambiguous, be reasonable and ask for clarification.

 

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