The CAFC approvingly noted that “a reasonable contractor is expected to recognize patent ambiguities and to inquire about the work to be performed.”10 The Court also stated that “Whenever the Government uses specifications in a contract, there is an accompanying implied warranty that these specifications are free from error. The test for recovery based on inaccurate specifications is whether the contractor was misled by these errors.”11
In the Turner case, the Government claimed some electrical panels must be fire-rated. The contract specifications, however, which take precedence over the drawings, did not require fire-rating. Moreover, the applicable fire codes did not impose this requirement. Hence, Turner did not propose a fire-rated panel, and claimed additional cost when the Government imposed the requirement. The Court concluded that the error in the drawings does not place the burden of that error on the contractor, and it found in favor of Turner.
The moral of the story here is: Ask questions when you recognize a patent ambiguity or defect in a solicitation! When in doubt - ask! Do not assume anything! Don't assume that your questions will give away a competitive strategy. If you remain silent, you may suffer a loss after award for which there is no recovery. A court will not award an equitable adjustment after award of a contract if you fail to challenge a patent ambiguity or defect on
or before the award of the contract.
Tom Petruska, Owner
Contracts Unlimited, Incorporated
Do you need assistance with warranty of specification issues or other matters?
NOTE: The above article is not intended to be legal advice or a legal opinion. Readers should contact their attorney for legal counsel.
Footnotes:
1. United States v. Spearin, 248 U.S. 132 (1918)
2. id.
3. E. L. Hamm & Associates, Inc. v. H. T.
Johnson, ASBCA No. 51838 (April 2, 2003)
4. CAFC quoting Space Corp. v United States, 470 F. 2d, 536, 538 ( Ct. Cl. 1972)
5. E. L. Hamm & Associates, Inc. v. Gordon R. England, Secretary of the Navy, No. 03-1527
6. id.
7. CAFC quoting Robbins Maint., Inc. v United States, 265, F.3d, 1254, 1257 (Fed. Cir. 2001)
8. See Note 5, supra.
9. CAFC quoting P.R.Burke Corp. v. United States, 277 F.3d, 1346 (Fed. Cir. 2002)
10. CAFC quoting Zinger Const. Co. v. United States, 807 F.2d, 979,981 (Fed. Cir. 1986)
11. See Note 7.
