on plaintiff’s motion for rehearing en banc pursuant to RULES 7(d) AND 151 (b)
[March 4, 1977]
ORDER
Thomas M. Phillips, attorney of record, and Ronald L. Palmer, for plaintiff. Baker <& Botts, of counsel
Raymond B. Benzinger, with whom was Acting Assistant Attorney General Irving Jaffe, for defendant.
Before Davis, Judge, Presiding, Cowen, Senior Judge, and Bennett, Judge.*132This case comes before the court on plaintiff’s motion, filed January 21, 1977, for rehearing en bane pursuant to Eules 7(d) and 151 (b), requesting that the court reconsider its opinion and decision of December 15, 1976, dismissing plaintiff’s petition. The motion has been considered without oral argument.
As for the suggestion for rehearing en bane under Eule 7(d), the matter was considered by the then seven active Judges of the court (Chief Judge Cowen not having yet taken senior status at the time the vote was taken) and was denied.
The motion for rehearing under Eule 151(b) has been considered by the panel listed above. Plaintiff claims that the basis of the court’s decision — application to this case of the principle of “patent ambiguity” — was an unfair surprise to it, not having been previously raised in the litigation. The panel points out, however, that, although the defendant did not base an extended argument on the so-called rule of “patent ambiguity”, that principle was plainly adverted to in at least two separate places in the Government’s main brief filed November 28, 1975.1 The plaintiff should not have been taken by surprise. Moreover, assuming contrary to fact that the defendant had never mentioned the contention at all, it is important that the principle of “patent ambiguity” was expressly raised from the bench during oral argument; our rule has been that where a new subject is brought into the case by questions from the bench at oral argument, a party which feels that the record or briefing, as they stand, inadequately present its position on that matter should so inform the court at the argument or promptly thereafter. In that situation it is not proper practice to wait, as here, until after the decision to make that claim. General Electric Co. v. *133United States, 189 Ct. Cl. 116, 117-18, 416 F. 2d 1320, 1321-22 (1969). This General Electric rule has often been applied by this court.
Even as a general matter it should not have been surprising that the principle of “patent ambiguity” was considered by the court to be implicated in this case. The interpretation of plaintiff’s contract presented an issue of law on which the court was not bound by the decision of the Board of Contract Appeals. In particular, the court was not restricted to choosing between the contentions that plaintiff’s interpretation of the contract had to be accepted because it was at least reasonable and the contrary argument that plaintiff’s interpretation had to be rejected because it was not at all reasonable. It could and should have been foreseen by the parties that included and embraced within those polar antitheses was the middle possibility that, though plaintiff’s position might be reasonable in itself, it rested on contract documents which contained patent ambiguities calling for clarification.
rr is THEREFORE ORDERED that plaintiff’s motion for rehearing be and the same is denied.
At page 39 of that brief, the defendant emphasized certain provisions of the specifications which (In the defendant’s view) plaintiff’s proffered plan could not meet — and then added significantly: "At the least, the emphasized language should have been a signal to plaintiff that it would have to seek clarification of the conflicts between the specifications and its intended diversion plan.” (emphasis added).
See also the following at page 46 of the brief:
“Plaintiff, at page 42 of its brief asks: ‘How In the world Is the contractor supposed to know what parts of the -353 he can disregard . .. The short answer Is that if provisions appear to be ambiguous a reasonable interpretation will disregard nothing. The simple answer to the Question is that the contractor has a duty to inguire when provisions are in conflict (emphasis added)