Solicitations drafted and amended under fourth-quarter pressure sometimes contradict themselves. The statement of work requires one thing, a pricing table assumes another, and an attachment says something else again. When you find a conflict with only days before the due date, you need to know how it is likely to be resolved and what the law expects of you. This article explains the general principles. It is not legal advice; for a specific dispute, talk to a government contracts attorney.
Order-of-precedence clauses
Federal contracts usually include a clause that ranks their parts when they conflict. In contracts using the uniform contract format, the standard order of precedence gives priority, in general, to the schedule (excluding the specifications), then representations and other instructions, then contract clauses, then other documents, exhibits and attachments, and finally the specifications. Commercial contracts use a different ranking set out in the standard commercial terms clause, which begins with the schedule of supplies or services and places the specification last.
These clauses resolve true conflicts between parts of a contract. They do not answer every interpretive question, and they are not a substitute for reading the documents carefully, but knowing them tells you which language is likely to control.
Patent and latent ambiguities
Courts and boards that decide federal contract disputes have long distinguished two kinds of ambiguity:
- A patent ambiguity is an obvious conflict or gap that a reasonable contractor would notice when reading the solicitation. Patent ambiguities trigger a duty to inquire: the offeror is expected to ask the government to resolve them before submitting. An offeror that stays silent and adopts its own preferred reading generally bears the risk if the government reads the language differently.
- A latent ambiguity is one that a reasonable contractor would not have noticed. When language is ambiguous in that way, and the contractor’s interpretation was reasonable and relied on, tribunals often construe the language against the government, which drafted it.
Interpreters also try to read a contract as a whole, giving effect to every part, so a reading that makes some provision meaningless is disfavored.
Protest timing reinforces the duty
The same principle appears in bid protest rules. At the Government Accountability Office, protests based on alleged improprieties in a solicitation that are apparent before the closing date generally must be filed before that date. The Court of Federal Claims applies a similar waiver rule to objections a contractor could have raised before the close of the competition. In both forums, waiting until after award to complain about an obvious solicitation problem usually fails.
What to do when you find a conflict
- Write a question to the contracting officer that cites both conflicting passages and asks which controls.
- Submit it within the question period, or as early as possible if the period has passed.
- Watch for an amendment answering it, and acknowledge the amendment in your offer.
- If no answer comes, follow the solicitation’s instructions on assumptions, and write and price to the reading most consistent with the document as a whole.
- If the issue is serious enough to affect whether you can compete fairly, talk to counsel promptly about your options before the closing date.
Solicitation provisions and clauses, including the order-of-precedence clauses, are at acquisition.gov, and GAO’s bid protest guidance is at gao.gov.