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Counsel Commentary — Patent Versus Latent: Unraveling the Ambiguity Puzzle

by Stephen L. Bacon

In the April 2024 issue of Contract Management Magazine, shareholder Stephen Bacon dissected the differences between latent and patent ambiguities in federal contract solicitations, along with their importance for bid protest litigation.

As Bacon writes, judicial decisions on whether terms are patent (clear and obvious) or latent (hidden or hard to detect) could dictate whether they should be interpreted more favorably for the government or for the contractor. They can also signal whether certain protests are timely filed. 

Bacon guides readers through how contractors can frame and litigate ambiguity issues during protests and contract administration stages of federal projects. He also shares several cases filed before the Court of Federal Claims and other venues to illustrate how latent and patent ambiguity arguments can play out. 

“Glaring errors should be spotted and brought to the government’s attention through the question-and-answer process or, if necessary, a bid protest filed prior to the proposal deadline,” Bacon writes. “A contractor’s failure to follow these rules could result in dismissal of an untimely protest or denial of post-award claim for monetary relief.”

Read Bacon’s article to learn more about the distinctions and impact of patent and latent ambiguities.

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