This blog was written by guest author Charles Hargett.
We’ve all seen the comic strip depicting the end result of a government procurement where requirements were delivered strictly in accordance with what was stated within the contract. Unfortunately for the requiring activity, what was stated in the contract did not match up with what they envisioned when they contemplated competing the effort and as a result the item delivered is a far cry from what was asked for. The visual impact of this cartoon drives home the point that when requirement documents don’t accurately state the expected outcome, the government should not be surprised when the contractor delivers something different than what was actually needed.
Consider the following statement:
“Mary had a little lamb.”
This is a phrase from a well-known nursery rhyme. However, when reading this phrase in isolation, how many different meanings are possible? One could interpret that phrase to mean Mary had a lamb that is small in size. Or, perhaps Mary was eating mutton in a small quantity possibly for her meal. Two completely different interpretations from the exact same words. Although this is a simplistic example, it symbolizes problems encountered in the real procurement world.
Before the cause of an ambiguity can be ascertained, one must understand the types of ambiguities and definitions of each. Ambiguities typically come in one of two varieties. Patent ambiguities are obvious in nature and arise from defective or contradictory language. A patent ambiguity is typically straightforward and not subject to credible defense from the drafter of the language. An example of a patent ambiguity would be if a contract were for the installation of 1,000 feet of sidewalk, but the specification only calls for 100 pounds of cement. Obviously, 1,000 feet of sidewalk would require far more than 100 pounds of cement.
If the ambiguity is not a patent ambiguity, then it is most likely considered to be latent. A latent ambiguity arises when language in the contract can be read with more than one meaning. Looking at the nursery rhyme lyric above, one could classify that as a latent ambiguity when it’s read in isolation and without any other context. A latent ambiguity requires interpretation using other information as may be available.
It is latent ambiguities that cause the most grief to contracting officers. In most cases, they try their darnedest to craft language in such a way that prevents multiple interpretations as much as possible. When a latent ambiguity manifests itself, a contracting officer must work to interpret the language in a way that is fair and takes into account the contract as a whole and not focus just on the ambiguous language.
Currently, I am engaged in proposal development in response to a government RFP in the private sector. Having spent many years on the government side of the equation, I know that this RFP went through myriad reviews. In spite of the multiple reviews, this RFP is chock full of latent ambiguities. So much so that during the question and answer period, industry submitted in excess of 350 questions seeking clarity on the requirement. Although the government took the time and spent the effort to answer each of the questions, they failed to recognize that the language in the RFP was leading to misunderstanding and multiple interpretations. As a company, we did the best we could to assume the government’s intention and propose accordingly. The proposed technical approach is believed to be excellent and no doubt will achieve successful outcomes; however, the nagging question that still exists is whether what was proposed will be received by the government as well as we think it will. In addition to this uncertainty, we had to price the proposal in such a way that the company was not taking on so much risk that it would be detrimental to the long-term viability of operations. This uncertainty around the requirement need not exist, at least not to the extent that it does. Because ambiguities exist, the benefit to the government will not only cost more, but may also fall short of what might have been a much better solution had the government’s need been more clearly communicated.
Is there an answer to ridding ourselves of these painful miscommunications? It is not likely they can ever be completely eradicated. Many requirements are nuanced and difficult to articulate. They require caveats and assumptions to be made. However, not all is lost. Ambiguities exist because there is a breakdown in communication. Government procurement policies make exchange of information challenging at times. With that said, there are many things government contracting officers can do to make things a little better.
In advance of an RFP being issued, allow industry to provide comment on the requirement itself. Contracting officers should seek input as much as possible from the other side of the contractual equation. Market research should be done in a sufficient manner for a particular requirement. There should be ample understanding of the market environment long before an RFP is issued. This information gained through the pre-solicitation phase should be used to shape the structure of the RFP. The inclination to continue with what’s always been done should be resisted as much as possible. The market environment changes and so should requirement development.
The bottom line is ambiguities are inherent in our line of business. Contracting officers and industry counterparts should spend more time partnering in an effort to seek understanding so when an RFP is drafted, the language included takes into consideration how it will be read by the other party. This can go a long way toward reducing negative impacts of ambiguities in contract language.