Government Contracting Database
Errors and Omissions
Errors and omissions are important because a contractor cannot ignore an obvious error or omission. If a contractor recognizes that something is deficient in the plans and specifications which are part of the solicitation, he is required to bring that to the government’s attention. Failure to do so may result in a later claim being rejected because of the failure to bring a patent, or known, defect to the government’s attention in time for the government to correct its solicitation and place all bidders on an equal footing. It is extremely dangerous for any contractor to keep information about an error or omission to himself, hoping that he will later be entitled to a profitable change order when he foists the deficiency upon the government during construction of the project. There are many times, however, when the government does not respond in a helpful way to a bidder’s notification of a possible error or omission. All too often, the response of government technical representatives to a question raised by a bidder is “bid it as you see it.” This common response is not at all helpful and causes the bidder to guess about the government’s intentions. If you are faced with this kind of response, you should either protest the refusal of the government to clarify the solicitation prior to bid opening or notify the government of how you “see” the specification and how you will bid it. You should request that the government notify you prior to bid opening if your understanding of the plans and specifications is incorrect.
If a bidder is aware of an error or an omission, it is obliged to call it to the government’s attention. A bidder may not assume the interpretation most favorable to itself, but must check with the government, lest it be held to the Government’s interpretation. Continental Heller Corp., GSBCA Nos. 6929, 7143, 84 – 2 BCA 17, 276 ; Malloy Construction Co., ASBCA No. 25055, 82 – 2 BCA 16,104 . As one Board said of a contractor who lost his appeal for failing to make the required inquiry, “All he had to do was ask.” Saajan Moving & Storage Co., GSBCA No. 6364, 83-2 BCA 16,741. The interpretation is given to a contract by the actions of the parties before it becomes a subject of controversy is deemed to be of great, if not controlling, weight.
In a landmark decision by the U. S. Court of Claims, the Court stated, in Blount Bros. Construction Co. v. U. S., 171 Ct. Cl. 478, 496 – 497 (1965):
Contractors are businessmen, and in the business of bidding on Government contracts they are usually pressed for time and are consciously seeking to underbid a number of competitors. Consequently, they estimate only on those costs which they feel the contract terms will permit the Government to insist upon in the way of performance. They are obliged to bring to the Government’s attention major discrepancies or errors which they detect in the specifications or drawings, or else fail to do so at their peril. . . .
Updated: June 25, 2018