73.

Ambiguities

Ambiguity in a contract may be either latent or patent. If a contract is reasonably, but not obviously, susceptible of more than one interpretation, it is latently ambiguous. Hills Materials Co. v. Rice, 982 F.2d 514, 516 (Fed. Cir. 1992). A latent ambiguity will be construed against the drafter if the nondrafter's interpretation is reasonable. Hills Materials Co. 982 F.2d at 516, citing Fort Vancouver Plywood Co. v. United States, 860 F.2d 409, 414 (Fed. Cir. 1988). Whether an interpretation is reasonable will be determined by ordinary principles of contract construction. A patent ambiguity is an obvious error, or gross discrepancy, or an inadvertent, but glaring gap. H.B. Zachry Co. v. United States, 28 Fed. Cl. 77, 81 (1993), aff'd 17 F.3d 1443 (Fed. Cir. 1994), citing Interstate General Government Contractors v. Stone, 980 F.2d 1433, 1435 (Fed. Cir. 1992). Where a patent ambiguity exists, a contractor is under a duty to attempt to resolve the ambiguity prior to bidding if the contractor subsequently wishes to rely upon the provision. E.g., S.O.G. of Arkansas v. United States, 546 F.2d 367, 369 (Ct. Cl. 1976). In such circumstances, the obviousness of the discrepancy is critical, not the actual knowledge of the contractor. Chris Berg, Inc. v. United States, 455 F.2d 1037, 1045 (Ct. Cl. 1972). Failure by a bidder to seek a clarification of a patent ambiguity prior to submitting its bid precludes that bidder from later recovering for work that it reasonably, but wrongly, believed was not required by the contract. Tilley Constructors & Engineers, Inc. v. United States, supra. [cited in USAM 4-4.420]