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No Contract Ambiguity to Excuse Default

A contractor's contention its default was excused by a patent ambiguity was rejected by the Court of Federal Claims because the contract requirements were not ambiguous and the government had a reasonable basis for believing the contractor could achieve the requirements. The government terminated the fixed-price contract to design and produce helicopter armor on grounds the contractor failed to make progress to meet weight and ballistics requirements. The contractor alleged breach of contract based on bad faith and abuse of discretion, asserting the government was aware of a patent ambiguity in the contractor's bid and awarded the contract despite the nonconforming bid.

No Intention to Meet Requirements

The court found no ambiguity in the solicitation or the contract regarding the weight and ballistics requirements. Moreover, it was the contractor's duty to clarify any patent ambiguity created by a general reference to a military specification, and the contractor's proposal to use a particular material was not incorporated into the contract. The contract provided for a five-month design, development, and testing phase, and the government had a reasonable basis for selecting the contractor and believing it could work towards and achieve the stated weight and ballistics requirements. The contractor's failure to clarify any discrepancy between the ballistics capabilities of the material it intended to use and the contract's ballistics requirements precluded the contractor from arguing its failure to make adequate progress on the ballistics requirements could not be used as a basis for the default termination. The default termination was justified because the contractor's posture and actions demonstrating its initial intention not to meet both the ballistics and weight requirements made it reasonable for the contracting officer to conclude the contractor would not complete the contract on time. The contractor also failed to meet both requirements by the date specified in the cure notice, use materials that had a better chance of meeting contract specifications, produce a required qualification test plan, and facilitate the government's presence at an independent testing facility. (Armour of America v. U.S., FedCl, 55 CCF 79,512)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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