*1 аmendment narrowing constitutes hold- That estoppel.” an rise to
may give that no flawed, it holds for seriously ing presumptive can avoid claim subordinate a broad- estoppel whenever surrender writing of Yet cancelled. claim er dur- cancellation their claims broader common is, was, the ing prosecution indeed are practitioners Astute practice. equiva- to access left of needed, little is for lency. problem, no rule new solves
Today’s need. no unmet addresses wrong, no rights obtain attempt may applicants Future equivalents doctrine to the access Pat- claims. dependent avoiding through more, inde- cost since will applications ent fee than heavier carry a claims pendent op- more bewill There ones. dependеnt mistakes, insignificant portunities limitations wording of changes by reference incorporated have been Examination litigation. fodder will be the use longer, take probably will organization adds form dependent under- easier them and makes claims who patentees are those The losers stand. rule, new today’s to foresee reason had no cope will who patentees and future with it. INC., TECHNOLOGIES,
Plaintiff-Appellant,
v. Defendant-Appellee. STATES, UNITED No. 03-5045. Appeals, Court States United Circuit. Federal 3, 2004. June *2 concluded Claims of Federal
Court in this case at issue the solicitation inter- ambiguous, correct, the solicitation pretation *3 deter- bid evaluation agency’s and fur- court trial stand. mination alternative, if the that, in the opined ther ambiguity ambiguous, was solicitation for not prevail could and patent was hold we reason. the ambi- and ambiguous was solicitation judgment affirm we patent, guity Claims. of Federal of the Court
BACKGROUND the United November On Baker, Barton, Welch, (“Navy” T. Navy William of Department States VA, McLean, LLP, Tolle, of & number
McMahon solicitation issued “agency”) him With facil- plaintiff-appellant. for for bids argued to obtain N68711-01-R-5101 services, R. Tolle. John in- utility brief was on the and ity maintenance repair, and maintenance cluding facilities Attorney, Commer- Ewing, Richard S. maintenance, facili- and operations utilities Division, Branch, Unit- Civil Litigation cial environ- and engineering, planning, ties Justice, of Wash- of Department ed States services, Marine support mental defendant-appellee. DC, for argued ington, Califor- Diego, in San Depot Recruit Corps M. David the brief were him on With of by a population Depot is nia. The Snee, Assis- Directоr; G. Bryant Cohen, 2,600 perma- including 9,600 people, toup Rubianes-Colla- Director; and Wanda tant 3,500 and between and personnel nent Attorney. zo, of appearance 7,000 recruits. Marine PROST, LINN, GAJARSA, and policy subject to Before key, facility is ... be Judges. Circuit buildings/facilities unique “the aas manner in a professional maintained by Circuit filed the court for Opinion Corps pride of Marine projection filed Dissenting opinion LINN. Judge renowned.” world Judge PROST. Circuit part of issued as LINN, Judge. Circuit de- effort comparison cost more efficient it was whether (“NVT”), termine ap- Inc. Technologies, maintenance specified accomplish the United of decision a-final from peals an outside under Depot for Claims, denying services of Federal Court States of performance byor contraсt judgment summary motion for Management Office tasks. cross-motion granting A-76 sets No. (“OMB”) Circular Budget administra- on judgment summary mandatory process an elaborate forth the final over protest record, in NVT’s tive pri- in-house the costs comparing a bid determination comparison cost the cost performing Techs., production. v. vate Inc. process. evaluation A-76, agency under OMB comparison (2002). The States, 54 Fed.Cl. United to compare the bid of private sector agency’s management plan satisfied source with the cost of providing good Performance Work Statement require- or service with facilities and ments and that the in-house cost estimate personnel, or the agency’s “Most Efficient was reasonable. The agency’s bid was Organization” or “MEO.” See Am. Fed’n then seаled. Employees Gov’t v. States, United After NVT’s technical and propos- (Fed.Cir.2001). F.3d The MEO als submitted, were agency conducted is not an necessarily existing organization, two rounds of discussions with the compa- organization but the the agency would es ny. The agency determined that NVT’s tablish if it competing were for the work. *4 final proposal revised acceptable, and at Id. 1296 n. 1. If perform price evaluation board further found ance is determined to be economical, more NVT’s proposed price realistic, com- no award is made under the request, and plete, and reasonable. agency thus may be canceled. selected NVT’s proposal as private- process bid was to consist of three sector offer to compete against gov- steps. First, interested bidders from the ernment’s plan. in-house A Navy quality private sector would submit “statements of comparison team then agen- evaluated the qualifications.” These submissions cy’s would in-house plan “to ensure that be evaluated agency and the would inform technical proposals of NVT and the gov- offeror, based on that evaluation, ernment offered the same per- level of whether it was considered to be a “viable performance formance and quality.” The competitor.” Bidders, however, be would team found that plan in-house able to continue to the step second “balanced in performance quality and to process bid regardless of the evaluation that proposed by [NVT].” Navy then Next, results. each offeror would submit proсeeded to a cost comparison and con- technical price proposals. These pro- cluded that in-house performance of the posals reviewed, would be and a competi- specified work would cost less than per- tive and acceptable offer would be selected formance NVT. Specifically, ad- NVT’s as the private-sector offer to compete justed $43,025,120 cost at was found to be against the agency’s in-house proposal. $3,937,980 higher than the agency’s pro- Finally, the selected private-sector posed offer cost of $39,087,140. The initial compared be to the in-house propos- award went to the in-house MEO on July al to ensure that both offers 26, offered the 2001. same of performance level аnd the pro- August 27, On 2001, NVT appealed the posed costs would be compared. The ini- cost comparison decision to the adminis- tial award would then given to the trative appeal (“AAA”), authority alleging
lowest cost bidder. inter alia that the in-house estimate for
In response to the solicitation, the Navy low, materials was too but identifying no received statements of qualifications from particular provision it believed was misin- offerors, three including NVT. After evalu- terpreted. 30, On August 2001, the agen- ation, only NVT was determined to be a cy revised its estimate response to other competitor, viable and NVT alone elected allegations in NVT’s appeal, increasing to continue in the remainder of the compe- cost proposal. However, agency’s re- tition. Prior to the closing date for receipt vised estimate was still less than NVT’s of NVT’s technical and proposals, the proposal. On September 27, 2001, the Naval Audit Service certified that the AAA issued a final determination, accept- to the reasonable, the award and that estimate amended agency’s ing the 5, On June allega- be affirmed. should MEO the remainder denying heard of Federal Claims 2002, estimate. the Court low materials tions, including the argu- At 2001, protested 4, on these issues. argument October On oral Ac- General whether ment, questioned decision court AAA’s final trial to (“GAO”). In addition Office of bid counting mistake made a had raised before it had issues raising several obligation had an AAA whether gov- argued AAA, NVT also allow NVT that mistake” out “ferret re- low was too estimate ernment’s then ordered court The trial it. correct labor esti- raw repairs, leak roof spect to bid mistake on briefing supplemental tile ceramic mates, performance obligation and on issue 2002, is- GAO January On repair. misreading of inform NVT NVT’s protest. denying a decision sued specifications. required filed com- January On before proceedings the heart At Claims, of Federal the Court plaint *5 court, to this court, appeal and on trial had unlawful- alleging 2(a), a table Attachment J-C Solicitation is base continue it should that ly concluded work-load of line-item containing hundreds in- services maintenance operations “Para- includes table estimates. contended particular, house. the text reference to Number” graph vol- of the interpretation government’s “Title,” identifying the solicitation; a by the repair specified tile ceramic ume of columns, “Num- headed: item; three if the wrong, and Measure,” “Frequency,” ber,” “Unit had been interpretation proper that line- of work scope reflecting estimate, bid would in-house to Pre- entry related exemplary An item. the award. lower, to entitling NVT been (“PM”) for the Mo- Maintenance ventative that NVT’s responded in reflected Facility is Wash Vehicle tor supported, is reading of the solicitation following line item: Unit Paragraph Frequency Measure Number Title Number Monthly EA 41 Spray Nozzles PM C-5.2.3.2.8.5 nozzle main- spray cost multiplying contractor requires the line item This nozzles, twelve times the 41 times tenance appropriate at the staff assign sufficient un- It is required. pre- perform “monthly” occurrences grade pay skill level interpreta- spray proper of 41 on each this is disputed maintenance ventative also At- contractor line items month. The thirteen nozzles once but tion all of materials 2(a). to include costs required J C tachment tasks. stated perform dispute table entries specific cost one-year on a based to be bids were thir- of the twelve first are the case this provided Frequency column proposal, 2(a), J-C Attachment teen line often, year, in a of how an indication RE- TILE CERAMIC “MISC headed performed. were listed tasks in this line All thirteen PAIR.” item, on the above example, based For below: reproduced category are determined would be the offeror’s 1158
C-5.2.3.2 C-5.2.3.2 C-5.2.3.2 C-5.2.3.2 C-5.2.3.2 C-5.2.3.2 C-5.2.3.2 Paragraph C-5.2.3.2 C-5.2.3.2 C-5.2.3.2 C-5.2.3.2 Number C-5.2.3.2 C-5.2.3.2 C-5.2.3.2 Replace Cyclic Replace Replace Prepare, Place & Finish Plaster Prepare, Place & Finish Stuccо Replace Replace Miscellaneous Replace Lay Title Form, Lay MISC CERAMIC TILE REPAIR Floor Tile Tile in bleized Floor Tile Block Brick 8"x8"xl6"Concrete Cinder Maint to Place & Finish Concrete 6"x6"Ceramic Wall Tile 4"x4"Ceramic Wall Tile 2"x2"Ceramic Wall Tile 6"x6"Ceramic 12"xl2"Ceramic Mar- l"xl" Ceramic Wall Tile Messhalls, Concrete Repair etc. Quarry Ceramic Repairs Number Measure 119 48 48 59 59 98 52 60 7 fecam HRS CO CO CO GQ CO CO CO CO Unit of CO [00] fe fe fe fe fe fe *1 Daily [00] t- Cft OÍ Frequency [00] LQ O
The last of the thirteen items listed in er a different rule for mistake in bid
category
this
example
like the
noted
apply
should
in A-76
if
agency
cases
above,
and its
ques-
is not in
had notice of the error. The trial court
tion.
rejected NVT’s contention that the solicita-
In calculating its estimate for the twelve
defective,
tion was
require
multiplied
*6
rebid of the
concluding that
“Number” column by the “Frequency” cоl-
NVT should have
sought
instead
clarifica-
umn
prepared
its technical
tion about the solicitation. For these rea-
proposals
76,209
based on total of
square
28,647.85
sons,
feet of tile and
the Court of
granted
man-hours of
Federal Claims
labor. MEO’s bid instead took the figures
motion for summary
in the “Number” column to represent
judgment on the administrative record and
square
total
feet of tile for each line item. denied NVT’s motion
summary
judg-
The MEO did not use
“Frequency”
ment.
multiplier,
as a
and its cost esti-
mate
1,354
was thus based on
square feet
NVT timely appealed
court,
to this
as-
1,354
of tile and
man-hours of labor.
serting that the
Court
Federal Claims
Before the
Claims,
Court
Federal
1)
erred in concluding that:
govern-
both parties argued that
the solicitation
2)
ment’s
reasonable;
was
plainly supported
respеctive interpre-
their
that NVT’s interpretation was not reason-
tations. The trial court concluded that the
3)
able;
that the solicitation was not am-
solicitation was not amenable to two rea-
4)
biguous;
sonable interpretations,
only
gov-
ambiguity,
if any,
reading
ernment’s
reasonable,
was
patent.
was
appeals
also
the mistake
that the solicitation was therefore unam-
in bid issue.
Jurisdiction over this A-76
biguous. The trial court went on to con-
protest
bid
case was proper before the
that,
clude
if
even
reading
NYT’s
Court of Federal Claims. See Am. Fed’n
provisions at issue
also
reasonable—
Gov’tEmployees,
1159 ambiguous? B. theWas ANALYSIS question ap in this The threshold A. Standard of Review plainly sup the solicitation peal is whether or reading supports one more ports subject to actions are protest Bid reading ambiguous. than and is “To one of review established under the standard enough it is ambiguity show an not title 706 of 5 of Administrative section parties respective differ in their inter (“APA”), Act 28 U.S.C. Procedure Rather, of a contract term. pretations 1491(b)(4) (2000), agency’s which an § within a interpretations both must fall only if it aside is decision is set ” Metric ‘zone of reasonableness.’ Con an abuse of discre “arbitrary, capricious, structors, 747, Inc. v. 169 F.3d 751 NASA tion, accordance otherwise (citations omitted). (Fed.Cir.1999) Before 706(2)(A) (2000). law,” § 5 See U.S.C. court, argues that party this there Geom. Dоmenico Impresa Construzioni respective inter ambiguity no States, 1324, F.3d v. United Garufi plainly sup of the solicitation is pretation (Fed.Cir.2001); Con Advanced Data reasonable, thus ported, and while the oth States, 216 F.3d cepts, Inc. v. United party’s interpretation er is unreasonable. (Fed.Cir.2000). begins
Contract determi review a trial court’s We language agree of the written with the novo, summary judgment de nations on States, 11 Foley ment. Co. v. United F.3d 1330, independently F.3d at Impresa, 238 (Fed.Cir.1993). inter When to de examining the administrative record contract, the must preting the document any “genuine issue[s] as termine whether interpreted considered a whole and are present material fact” and give as to harmonize reasonable so to a “moving party entitled whether to all of its McAbee meaning parts. law,” judgment States, as a matter Fed. Constr., v. 97 F.3d Inc. United 56(c). genuine (Fed.Cir.1996). no issues R.Civ.P. An inter 1434-35 *7 here, material fact exist we review the gives meaning parts of that to all of pretation a of preferred trial court’s decision as matter law. is over one the contract to be of contract use portion
that leaves a a interpretation void, of contract less, superfluous. or inexplicable, a of question States, or solicitation is law we Gould, 935 F.2d Inc. v. United Contracting (Fed.Cir.1991). 1271, 1274 review novo. Wickham de Fischer, 1574, 12 v. F.3d Co. 1577 I. (Fed.Cir.1994); Fortec Constructors v. United (Fed.Cir.1985). States, 1288, 1291 estimate, 760 F.2d multi- its NVT preparing ambiguous provision is a contract figures Whether in the “Number” column plied the Cmty. Heating question is also a of law. in the “Fre- corresponding figures Kelso, 1575, F.2d Plumbing Co. v. 987 of of & column for all the hundreds quency” (Fed.Cir.1993). ambigui an J C 1579 Whether in the Attachment Solicitation question 2(a), ty patent including disputed is or latent is likewise of the twelve Brown, 29 in CERAMIC TILE law. Interwest v. the “MISC Constr. (Fed.Cir.1994). in- example, For portion. This deter REPAIR” NVT F.3d 614 item, case-by-case terpreted basis. the first mination is made on Concrete,” Contractors, call “Form, Finish Inc. v. Place & Interstate Gen. Gov’t concrete, (Fed.Cir.1992). or 119 Stone, 1,428 square feet F.2d poured feet concrete and fin- square government argues that in- NVT’s = (119 x year times per terpretation ished twelve is ineoi'rect and unreasonable 1428). because it is inconsistent with other por- tions of the particular, solicitation. In argues that NVT its government notes that NVT’s construction reasonable. NVT notes that the words results in a disproportionate amount of “monthly,” “quarterly,” or “weekly” ap- tile, given that corpus of the solicita- peared in the “Frequency” column for tion incidentally refers to ceramic tile. most of the hundreds of line items in At- Further, that asserts 2(a) tachment J-C to prepare the contrary for each of estimate these line terms “maintenance” “preventative value “Number” column needed to maintenance,” as in defined the solicita- multiplied by 12, 4, be number or tion. “Maintenance” is defined as “[t]he respectively, representing the number of day-to-day, recurrent periodic or sched- year in a calendar times that the work was uled work required preserve or restore performed. NVT used the same facility to such condition that may it for the twelve approach ques- line items in effectively utilized for designed pur- its tion, using the number in the Frequency pose.” “Preventative maintenance” means multiplier column as a it had for the “[sjervicing accomplished on a scheduled equivalent numerical of the words in the or recurring basis to lengthen the equip- Frequency column for all of the other line ment life. The effort involves visual in- argues items. NVT that its interpretation, spection, operational tests, lubrication, ad- applying logic the same to the line items in justments repair and the replacement question as to the other line items in the minor component defective parts.” Given schedule, is a harmonious reading of all of definitions, these argues provisions of the contract. fur- interpretation, resulting ther notes that nothing specification installation of football 1.3 fields worth of that a suggests different methodology be replacement per year, tile unreasonable, the line items dispute. while the government’s estimate, resulting
Finally, argues esti- in much tile, less replacement is reason- mate is reasonable. Although NVT calcu- able. further contends 76,209 a total of square lated feet of tile to that NVT’s interpretation is unreasonable be replaced, contends, gov- over the given the information available to each bid- objections, ernment’s that while figure der the solicitation in the form of ex- large, the total space floor *8 planatory files, facility history li- technical is over 3 Depot square Thus, million feet. materials, brary and a software database figure NVT’s is 2% of the total floor file. government The argues that in- this space. Moreover, NVT notes that the so- formation would have informed NVT’s bid emphasized licitation importance the of the and that NVT failed to advantage take of appearance of the and Depot the heavy these resources. reasons, For these the volume of reasons, traffic. For these government al- asserts that interpreta- though NVT’s bid of over million for the tion is $6 corpus inconsistent with the of the miscellaneous ceramic tile work alone is solicitation and a therefore is unreasonable. significant portion of the million total $43 II. bid, NVT contends that there is nothing to indicate or suggest that this was not government what The interprets the line was called for in the solicitation. items in question as not requiring multipli- the that indicated nowhere The schedule “Frequency” and “Number” the of cation “Frequency” and in the “Number” data the Rather by NVT. done аs was columns differently treated were only columns considers interpretation government’s that the question in the thirteen not use the and does Number column the items should for those numbers frequency mul- as column Frequency in the numbers Moreover, although NVT’s ignored. be that contends government tipliers. an extensive resulted interpretation appar- it was because reasonable this was amount the replacement, of tile amount be treated items should line that these ent (a) given wholly unreasonable: num- presence the on differently, based a small only represents items, amount that the line in those words rather than bers of the space floor the total percentage numbers bear that fact the as the as well of the (b) use extensive facility; given the periodic regular rеlationship no in the (c) the mandate given facility; by words. the signaled repetitions De- of the appearance reading is con- that asserts Further, de- great importance. is of pot rest of the with the sistent that the emphasis spite repair is denoted tile the ceramic failed to avail fact that NVT on the places if the dis- and because “Miscellaneous” provided resources the external itself of repre- were intended line items puted to no points contract, Navy, large portion such sent resources the external portion of given particular have been information more in- with NVT’s inconsistent be that would specification. in the these tasks about terpretation. in- government’s contends Fre- in the figures where terpretation, interpre- govеrnment’s find We also disputed line column for quency government’s reasonable. be tation to contract violates simply ignored, are the notion with is consistent interpretation reading that canon that maintenance, as repair of incidental is disfavored. superfluous terms renders of the solicitation. corpus noted in- government’s for the argues attribut- of the Moreover, portion the re- be consistent terpretation to in the maintenance repair and to tile able document, Frequency of the mainder proportional estimate government’s “Annually” or read should column set small expected what would blank, not the case. left been special treat- no that received line items government’s argues also no There was solicitation. in the ment meaningless renders illuminating the in the record evidence Maint to Re- “Cyclic item thirteenth signifi- understanding of the government’s Messhalls, etc.” Tile pair Ceramic “Frequency” the numbers cance of III. coun- government’s fact, argument, oral at unaware that he admitted sel both conclude We however, numbers; of those significance are with interpretations *9 in that the numbers not what point Metric reasonableness.” “zone of it was meant, whether rather but in column Constructors, F.3d at 751. 169 to treat government unreasonable reasonable, ap it because terpretation is used the words differently from them disput the thirteen logic to the same plies other all of the Frequency to the hundreds applied items as line ed face, on their that Recognizing line items. schedule. present line items other Frеquency the numbers column are and differed in respect that from the re- different from the words used elsewhere in maining hundreds of line items that made attachment, and further recognizing reference to regular periodic calendar any that those numbers do not appar- have occurrences Frequency entries, as these ent regular correlation to the periodic differences do not patent create a ambigui- repetitions signaled by the words used for ty. Rather, NVT contends that instead of items, the other line we do not think it was focusing on uniqueness disputed government unreasonable for the not to items, it is important more to under- use multipliers, them as especially because stand that there is nothing about those line the use of the numbers as multipliers re- prohibits items thаt reading reasonable sults in seemingly such disproportionate consistent with the remainder of the solici- totals and the non-use of the numbers as tation. argues multipliers yields totals that entirely are fact that numbers were the Fre- consistent corpus with the solicita- quency column for these twelve line item tion and given the attention in the solicita- entries, others, and not for the should have tion to the line in dispute. flag NVT, raised a red requiring NVT inquire. argues also interpretations “both ... fall in tallying noting estimate and reasonableness,” within a zone of Metric these thirteen line Constructors, items accounted for 751, 169 F.3d at we conclude large portion of its total solicitation, estimate— respect with to these approximately million out of a mil- $6 ambiguous. $43 was bid, lion or some despite their being 14%— ambiguity C. Was the patent? treated as solicitation, incidental in the was put also on notice that it should Because we hold that the solici inquired. Where, here, a certain tation was ambiguous, we turn now to the set of line expressed items is in a manner question of whether ambiguity so different from hundreds of other line patent. An ambiguity will be con items, yielding totals disproportionate to against strued if it was not remainder of the we find obvious on the face of the solicitation and “obvious, differences to gross, See, [or] reliance is shown. e.g., R. Edward glaring,” H & M Moving, 671, 499 F.2d at States, Marden Corp. v. United 803 F.2d requiring NVT to inquire. Because 701, (Fed.Cir.1986). If the ambiguity solicitation was ambiguous, but ambi- patent, triggers duty it inquire. A guity patent, it is undis- patent ambiguity is “obvious, one that is puted that NVT did inquire into such gross, glaring, [or] so that plaintiff con ambiguity, NVT prevail. cannot duty tractor had a inquire about it at the start.” H & M Moving, Inc. v. United
States,
696,
204 Ct.Cl.
499 F.2d
D.
Mistake in Bid
(1974). If an ambiguity is obvious and a
Finally,
argues
that even if
bidder
inquire
fails to
regard
we find the solicitation ambiguous, its bid
provision,
his
will
fail.
argument may
mistake
prevail,
still
based
Pac.,
West,
Triax
Inc. v.
130 F.3d
on In re IT Corporation,
1163 to recover not entitled it is specifications, in the referenced available mation specifi defective on these a claim based Moreover, on the- specification. Maint., v. United Inc. any solicita- cations.” Robins of unaware it was that *11 would therefore reverse the decision of the labor. The estimated amount of tile re- Court of Federal Claims. placement only amounted to a per- small centage percent the total floor —two —of
I space. Opinion at 1161. This included 36,287 square tile, feet of floor approxi- majority’s conclusion that the solici- mately percent one of the facility total ambiguous tation was is based on its find- 37,187 floor space, and square feet of wall government’s both NVT’s and the ing tile, plaster, or Moreover, stucco. these interpretations were reasonable. While I numbers also appear in light reasonable NVT, I agree disagree as to respect with high maintenance standards stressed to government. general a matter, As in the solicitation. Corps Marine policy the hundreds of lines thе solici- dictated that unique “the buildings/facili- gave tation details for listed task under ties ... be professional maintained a “Number,” columns titled “Unit of Mea- manner as a projection of Marine Corps sure,” “Frequency.” In addition, pride that is world renowned.” To that these bids were to be on one-year based effect, the Performance Work Statement proposal, cost meaning “Frequen- required to contractors ensure that “all cy” provides column an “indication of how buildings, surfaces, component parts often, in year, each of the listed tasks remain in a serviceable condition and are performed.” were to be Opinion at 1157. free of warping, bucking, cracks, loose, ... Accordingly, for each line item-including missing tiles; or chipped noticeable sur- the twelvе line in question —NVT face imperfections, ... damage and other performed calculation, the same multiply- or defects.” high Given contract’s ing the value the “Number” column by standards, the majority correctly conclud- the value in the “Frequency” ed that NVT’s bid did not call dispro- for a yearly This, arrive at a believe, total. I portionate amount repair of tile and was was reasonable for a number of reasons. therefore reasonable. begin, To reading of the twelve disputed line items was consistent with its I disagree, however, with the majority’s reading of the more than 800 other line conclusion that interpre- addition, In items. tation of the solicitation was also reason- does read out parts material (and able therefore demonstrates the exis- i.e., the column headings. tence of an ambiguity). According to the used the frequency values for these majority, because “the numbers in the just twelve as it did for all the Frequency column are different from the items; other line it ignore did not them. elsewhere,” words used 1161-62, id. at Further, majority notes, as the the end they bear no relationship result of NVT’s bid calculation regular method was periodic repetition, it was rea- also reasonable. The 287 identified build- sonable for to treat these ings at the depot were built between 1918 twelve line items differently. 3,221,472 cover approximately Specifically, in contrast to the more than square feet of floor space acres, on 433 and 800 other line appear items that under are used population 9,600 up identical column headings, Thus, people. agree I majority did not use the value under the “Frequen- that NVT reasonably interpreted the cy” solic- column as a multiplier for the value 76,209 require itation to square feet of tile the “Number” addition, column. Id. 28,647.85 replacement and man-hours majority the government’s finds inter- *12 any them differ- any words does not make relevant the reasonable because pretation above, the line As ent. demonstrated notion of with the consistent estimate formats, in- many come different items to proportional as as well repair incidental words, of words and a combination cluding a set of for small expected be would what Moreover, numerals, solely numerals. treat- special no that received items line peri- in both frequency line items list the Id. in the solicitation. ment Accordingly, non-periodic оdic and terms. First, several reasons. disagree I for items do not differ the twelve line many dif- uses that the solicitation given throughout any from standard format indicators in a broad frequency ferent has because the solicitation the solicitation formats, fact that the dis- the spectrum all As with such clear standard format. no solely numbers contained puted line items items, government other line the these (and the the justify not did applied pre- the default simply should have thereof. treatment majority’s) dissimilar “Frequen- in the sumption that the value primarily different variety includes This (per year) represents yearly a cy” fol- verbal, such as the indicators periodic to the be bid number # X Annually, every years, # lowing: year’s worth of on the cost one based Bi- Semi-Annually, Quarterly, Year, maintenance. Monthly, 2X Bi-Week- Monthly, Monthly, matter, Second, govern- legal as a the Daily. 2X But some line Weekly, Daily, ly, canons of violates the interpretation ment’s whatsoever, simply specifics no give items (a) require interpretation contract per- to the work needs be noting that (b) meaning to consistency, and giving More- “As-Req.” “As needed” formed First, govern- term. contract over, includes line items solicitation unreasonable be- ment’s in terms of the frequency express consistently to the apply it does not cause year” a and the number “treatments called solicitation solicitation. The entire addition, the year.” a of “times number multiplication the “Number” give contains line solicitation amount of to arrive at the “Frequency” days, hours and terms of frequency For more required. or materials work For pеriodicity. indication of without government as than hours, solici- respect example, with to to use this had acknowledges, bidders “20,- calling tation contains But their bid. methodology to assemble hours,” hrs,” and “2500 hrs.” “6000 similarly treat the did not con- days, solicitation respect to With In order disputed line items. twelve of “18 given terms tains line items consistently, interpret the contract terms Days,” and “180 Days,” “90 days,” “60 multiplied have should with a line item days.” It even includes by the “Num- figures “Frequency” these Fi- Days.” “Frequency” given “7/30 ber,” presumption. per-year applying items, the disputed line nally, in the twelve issue, if consistency corollary As figures purely numerical uses num- intend the did “Frequency” column. “Frequency” column given in the bers have multiplier, line item it could frequency format No matter what indicate such in, clearly the solicitation the solicitation mаy have been drafted “Annually,” there- “Num- to be done multiplication repairs of the were required the by one. This multiplication by requiring at the “Frequency” to arrive by the ber” the re- been consistent cost. The fact annual estimated has hun- mainder do not contain disputed line items twelve “Annually” By line items. using place. dreds of the first In particular, majority different “Frequency” value column disregards, view, in my the reasons it items, however, for these twelve line reasonable, found all *13 government clearly something meant dif- point of which finding the direction of ferent. patent latent rather than ambiguity. Further, by ignoring “Frequency” the my In opinion, ambiguity the was latent. respect disputed value with to the line not, concludes, It was as majority the obvi- items, the also violated the ous, gross above, glaring. As discussed canon оf contract that disfa- disputed the line items do not differ dra- rendering superfluous. vors terms If matically from the other more than 800 purpose, govern- these numbers had no as items; many line there are other formats suggested argument, ment counsel at oral in which the solicitation “Frequency.” lists they should not have been listed in the likely items, entered these line Moreover, “Frequency” by ignor- column. others, with the hundreds of a spread- into numbers, ing these the program, sheet multiplying them out to only unreasonably ignored given the values arrive at a price. bid A look at NVT’s items, in the individual line but also the proposal only percent reveals that two heading, clearly indicates the space total floor requires retiling every represent the numbers themselves year. Yet facility the at includes least 287 “Frequency” to be used for purposes of buildings built between 1918 and 1984 on assembling a bid. 3,221,472 433 acres with square feet of sum, unambiguously solicitation space heavily 9,600 floor by up required multiplication of the “Num- people Furthermore, at a time. the man- “Frequency” ber” and columns for each date in the requires that con- yearly figure item to arrive at a tractors maintain the at high- facilities purposes assembly, including of bid est standards in project order to Marine such, twelve line items. As I find Corps pride. context, Given this it is the of the solicitation the government’s and not NVT’s estimates only and, interpretation, reasonable low, seem disproportionately calling above, given disagree reasons with the ma- 1,354 for replacement square feet jority that government’s interpretation of tile. represents only This 0.04% of the was also reasonable. square total footage of facility. As- suming ambiguity existed, therefore, an II NVT’s interpretation was far more reason- agreed Even if I majority able, reflecting any the fact that defect here, an ambiguity existed I do not find the solicitation was latent. that ambiguity patent. majority con- drafted the solicitation cludes that ambiguity patent be- and should bear the burden of mis- cause the “expressed line items are in a case, takes contained therein. In this manner so different from hundreds of oth- solicitation unambiguously er called for bid- yielding disproportion- totals ders to multiply ate “Number” and remainder of the solicitation.” “Fre- Opinion quency” at 1162. in reaching Yet this con- columns for each line item. Even clusion, majority if abandons the there was an ambiguity, reasons requires law why it ambiguity concluded an existed that it be resolved against the drafter. As gov- granting Claims decision Federal exception discussed, ambiguity patent judgment. summary motion ernment’s apply here. does not this rule than lower have been bid would calculated they been had bid respectfully I methodology, using the same the Court would reverse
dissent notes (Fed.Cir.2001) States, 1258 a correction 265 F.3d when a time at defect tion Controls, v. the se- Inc. United before Johnson (quoting appropriate i.e., — 1312, 1320 propos- States, F.2d sector’s best private Ct.Cl. lection Here, disput- the have concluded (Ct.Cl.1982)). of we significance the al—because until NVT’s in ambiguity not raised was that ed line the defect the same with GAO. one and before the is appeal which case, Corporаtion NVT, and the con patent, the IT was distinguishes alleged also NVT, concluded case, agency inquired. in that have thus should because tractor ambiguity, available inquire the information an failing all of that identify the adequately specification not that did then claim offerors cannot fail the needs of that meet itself required to absolve defective to work was trial court’s Therefore, we affirm contract. ure. claim. mistake bid of NVT’s denial this not bind does Corporation, IT if a that proposition court, stands defective, bidders that such CONCLUSION solicitation bidding, the are they know on cannot what and the both NVT receiving rebid. After must be solicitation of the dis- interpretations proffered have parties, briefing from supplemental reasonable, we that are puted issue carefully аnalyzed this court trial ambigu- was solicitation conclude A- an this was the fact that that concluded However, ambiguity because ous. analysis of not affect did 76 solicitation patent, items was disputed line FAR issue, the associated because this by NVT an inquiry prompted have should to bid- rights additional give no provisions make, that we conclude it failed fur- court The trial of A-76 offers. ders Further, due to prevail. cannot failed to that because concluded ther mistake inquire, NVT’s failure to NVT’s the solicitation its contention inquire, deci- Accordingly, the fail. claim must bid Comtrol, fail, citing must defective Claims of Federal the Court sion States, 1363- F.3d v. United Inc. AFFIRMED. contractor (Fed.Cir.2002) (stating that a specification a defective rely on cannot dissenting. PROST, Judge, Circuit all failed to access the contractor where incorporated information available the solicita- concludes majority court The trial specification). into the ambigui- this and that ambiguous tion the exter- to whether findings as no made from dissent respectfully I patent. ty was solicita- referenced nal information Instead, I find of these conclusions. both com- NVT with provided tion would unambiguous because ITin unlike the situation knowledge, plete falls within thereof NVT’s Corporation. the alterna- In of reasonableness. zone latent. ambiguity tive, I find court’s the trial agree with We have been bid would Thus, basis, hold conclusion, if under the bid than fail. lower must argument in bid mistake I believe interpretation, into proper enters contractor particular, “[i]f I contract. awarded have been defective should the fact of aware a contract