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Identifying Patent Ambiguites

Thursday, January 02, 2003 12:08 pm

Identifying Patent Ambiguites

One of the basic rules in construction contracting is that a contractor must seek pre-bid or pre-proposal clarification of patent ambiguities in the contract documents. A contractor is not entitled to simply rely on its own interpretation and then demand additional compensation when the project owner issues a directive contrary to that interpretation.

A patent ambiguity exists when it should be apparent to a prudent, experienced contractor that the contract documents are susceptible to more than one reasonable interpretation. When there is a direct conflict between a specification and a drawing, the "Order of Precedence" clause - giving priority to the specifications - may resolve the problem and negate the ambiguity. This was discussed in the June 2002 issue of CCM. There are a number of situations, however, where only the clarification of the project owner can resolve the ambiguity. And a contractor's failure to detect the ambiguity and seek clarification prior to submitting a bid or proposal will be at the peril of the contractor.

Conflict between Specifications

A specification for a pedestrian tunnel called for waterproofing. A waterproofing spec called for Bentonite waterproofing "where indicated" on a particular drawing which did not depict waterproofing in the tunnel. This was a patent ambiguity in the specifications, triggering the duty to seek pre-bid clarification. Appeal of Hoffman Construction Co., Inc., VABCA No. 3676 (June 2, 1993); CCM August 1993, p. 5.

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