What Is The Federal Contractor’s “Duty to Inquire”?
When a federal government contract contains conflicting, ambiguous or defective specifications, must the government pay for additional costs the contractor incurs as a result?
One might think that the answer is “yes,” because the government–not the contractor–prepared the specifications. As a recent Armed Services Board of Contract Appeals decision demonstrates, though, a federal contractor has a duty to inquire about certain obvious defects prior to bid or potentially bear the burden of additional costs related to the defects.
The ASBCA’s decision in Appeal of Warrior Construction Services, Inc., ASBCA No. 64497 (2026) involved a contract between Warrior and the Army under which Warrior was to repair and rebuild Route 219 at White Sands Missile Range, New Mexico. The solicitation, which was set aside for service-disabled veteran-owned small businesses, included a series of construction drawings and specifications.
After the contract was awarded, a dispute arose. Warrior asserted that it had incurred additional costs because of the “conflicting and defective contract documents” prepared by the Army. Warrior contended that these defective documents “created ambiguity in the project length, construction limits, and asphalt surface quantities” and that addressing these ambiguities had caused Warrior to incur costs.
The Army did not dispute Warrior’s argument regarding the contract documents. To the contrary, the Army conceded that its own construction specifications contained “obvious internal ambiguities.” The Army contended that the ambiguities were so patently obvious in the solicitation that Warrior had a duty to inquire about them before submitting its bid.
The ASBCA agreed with the Army. Citing longstanding government contracting legal precedent, the ASBCA wrote that, typically, “ambiguities in a government contract are resolved against the party that drafted the contract,” that is, against the government. However, “if the ambiguity is patent such that it is ‘obvious, gross [or] glaring,’ then the contractor has a duty to inquire as to the meaning of the contractual provision.”
In this case, the ASBCA said, “[w]e are reluctant to reward the government for the abysmal state of its drawings.” However, “[t]he issues with the drawings were so glaring that they should have triggered an inquiry by Warrior prior to bid.” Because Warrior failed to inquire about the obvious defects before submitting its bid, it could not recover its costs after the fact.
The Warrior Construction Services decision demonstrates that federal contractors should not remain silent during the bidding process if the agency’s specifications appear defective. Failing to inquire about the apparent defects could effectively waive a right to recover additional costs during performance. As the old wedding adage says, speak now or forever hold your peace.
Disclaimer:
Nothing contained in this article is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This article is intended for educational and information purposes only. Although the author strives to present accurate information, the information provided in this article is not guaranteed to be accurate, complete, or up-to-date. Reading this article does not establish an attorney-client relationship with the author.
