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Deciphering Government Contracts – 10 Basic Rules
May 23, 2023 @ 10:00 am - 11:30 am
In a series of lessons, you will gain deep insight on how contracts, both government and commercial, are interpreted by boards and courts. The rules are not always the same for them! We will also spend some time discussing good contract drafting that will avoid interpretation disputes. Filled with both legal theory (for the legally inclined) and practical application for the practitioner, you will develop a deeper appreciation for contract formatting, drafting quality contracts, and avoiding disputes, ambiguities, and misunderstandings.
Tuesdays – 10:00-11:30am ET
May 23, 30, Jun 6, 13, 20, 27
May 23 – 10 Basic Rules Recorded
Interpreting contracts has been a challenge for as long as contracts have existed. Courts and boards have structured many rules to guide contract interpretation, and sometimes provided conflicting guidance. Legislation governing contracts has also taken different approaches. It is important to know which set of standards will apply to your contract. This introductory class will review ten of the most common rules and provide a foundation for the more detailed discussions in the remaining classes.
Contracts typically use acronyms, technical jargon, special terms of art, and phrases that are defined by industry trade and practice. The use of FOB versus INCOTERMS is just one example. Each of these can cause confusion in the communication process that leads up to contract formation. In addition to providing practical guidance and suggestions to avoid performance problems and disputes, this session will cover the concepts of ordinary meaning, reasonable person test, parol evidence rule, and ejusdem generis.
As troubling as it sounds, the parties to a contract are sometimes not even in agreement on what makes up the contract components. Issues such as attachments or clauses incorporated by reference, failing to identify specific versions of standard clauses, guidance versus requirement documents, incorporating changes, keeping cost, schedule and technical requirements aligned, and reading a contract as a whole are concepts that will be covered in this session. To properly interpret a contract you must first know what it is.
Just as in school, spelling and grammar count when reading a contract and understanding its intent. There are many frequently misused words and phrases that tend to contribute more confusion than clarity. Have you ever heard someone refer to the “physical year” when the meant the “fiscal year”? Interpretation rules here include the rule of sameness and contra preferentem. Proper and consistent references are also discussed. Creative writing is typically NOT a preferred approach in contract drafting.
Despite the existence of an Inspection and acceptance clause or clauses, many contracts are drafted with unclear descriptions of how they end. Improper inspections are one of the primary causes of constructive changes in contracts. Understanding principles of contract discharge, determining the intent of the parties at contract formation, and discussing types of conditions that can affect contract performance are included among the topics discussed.