In a previous post we saw that an ambiguity can be used aggressively to throw out a bid even after contract award.  There is more to the story. When a bid specification is ambiguous, the burden is not entirely on the specification drafter.  If the protester had opportunities to seek clarification and failed to do so, then its interpretation will not be reasonable and the specification will not be ambiguous.  In re: Protest of Andersen Consulting, SC Procurement Review Panel 1993-18 (http://www.procurementlaw.sc.gov/MMO/legal/decisions/93-18.pdf ).  Andersen Consulting stated in their proposal that “several assumptions have been made.”  This statement was not well-received by the Panel.  The Panel repeatedly referred to the impropriety of making assumptions in light of the various steps available to get clarification.  The procedures provided for in the Request for Proposals (RFP) included a pre-proposal conference, question and answer time, and the ability to ask about answers to previous questions published in amendments to the RFP.  The Panel ruled that because Andersen “did not take the proper steps” to have its questions answered, it could not claim an ambiguity, and thus the requester’s determination that Andersen’s proposal was non-responsive was upheld.

When a solicitation of bids is drafted, it is important for the requestor to be familiar with the precise requirements that lead to the procurement.  This should enable the drafter to create bid documents that are clear and specific.  Otherwise, the bid process may have to be re-done, even after an award was made. 

A specification is ambiguous if it “is of uncertain meaning and can reasonably be interpreted in more than one way.”  In re: Protest of Warehouse Distributing Company, SC Procurement Review Panel 1988-2 (http://www.procurementlaw.sc.gov/MMO/legal/decisions/88-2i.pdf).  Where a protesting bidder interpreted the specification differently than the drafter intended, the bid protester need only show that its interpretation of the specification was “reasonable” in order to establish ambiguity.  In re: Protest of Pitney Bowes, Inc., SC Procurement Review Panel 1988-14(II)  (http://www.procurementlaw.sc.gov/MMO/legal/decisions/88-14ii.pdf).

In the Pitney Bowes case, the alleged ambiguities pertained to the use of the word “reservoir” in one part of the specification and the word “and” in another part.  The specification called for a mailing machine that used an “ink reservoir,” where the requestor intended the broader, dictionary definition of the term rather than the more technical, industry-specific meaning ascribed to it by Pitney Bowes.  Further, the specification required a system capable of producing “daily, weekly, monthly, and yearly transaction and summary reports.”  Pitney Bowes asserted that the winning bidder’s machine was non-responsive in that it could not produce reports for all four time periods.  Even though the Review Panel noted that there is no such thing as a daily summary report and a yearly transaction report would be prohibitively large, Pitney Bowes’ literal interpretation of this provision was considered reasonable.  The Panel relied on both of these ambiguities in ordering the specification re-written and the contract re-bid.