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Deciphering Government Contracts – How do You Know When it is Done?
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
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.
May 30 – Say What You Mean; Mean What You Say
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.
Jun 6 – What IS the Contract? Putting the Right Things in and Leaving the Wrong Things Out
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.
Punctuation conveys important information to the reader. Miss-using or omitting those tiny dots and dashes can turn a contract into something one of the parties might have never intended. Courts and boards are often asked to review the rules of basic English to determine what the parties were thinking. Many basic, but important, conventions are applied to determine intent, even if that is not what you meant! Covered topics include order of precedence, express terms, course of performance, and course of dealing.
Jun 20 – Word usage – misused words; grammar; references
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.
Jun 27 – How do You Know When it is Done?
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.
