Ambiguity and Default Termination
There is a well established rule that offerors should, after identification of an ambiguity in a solicitation or a contract, notify the contracting officer and obtain a clarification promptly. It is not sufficient for a contractor to furnish mere notice; they must obtain a written clarification or explanation of the ambiguity. Failure to obtain such a clarification renders, or may render, the contractor’s interpretation of the ambiguity at variance with that of the government and potentially lead to a claim or a default termination. If there is any doubt about the government’s intent when a patent ambiguity is discovered, the contractor must obtain a complete clarification.
The U.S. Army Sustainment Command (“the Army”) issued a solicitation on June 22, 2006 for 100,000 pounds of potassium chlorate
Mil-Spec failed to timely deliver the product, so the Army terminated the contract for default. Mil-Spec requested a 90 day extension that was denied by the Army. Mil-Spec appealed the default termination to the Armed Services Board of Contract Appeals (“ASBCA” or the “Board”) and the decision is listed as ASBCA No. 56070 dated August 6, 2009. The ASBCA denied the The initial question was: Does the “plain language of the contract support only one reading or support more than one reading”? Furthermore, “when a contract is susceptible to more than one reasonable interpretation, it contains an ambiguity.” To show an ambiguity, the interpretations of both parties must be reasonable. If the Court or Board determines there is an ambiguity, is the ambiguity patent or latent? appeal.An ambiguity is patent if it is so glaring as to raise a duty to inquire.
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