WHEN ALL ELSE FAILS . . . .

Read the contract.  All of it.  Including any attachments.  Carefully.  Was the proposal incorporated?  In nearly every REA, default termination and claim situation, the contractor's first reaction may be to blame the government.  But contractors need to apply the scientific method to their theories of causation and blame. What did the contract say?

We've written about the need to scrub and scour the solicitation.  Any questions, including obvious ambiguities must be raised promptly, certainly well in advance of proposal submission.  The devil is in the details.  And the more eyes on the language the better, including professional, dare I say legal help.  But when the contract is awarded and problems arise, the first move should be to read the contract.

The contract may contain latent ambiguities.  The first rule of contract interpretation is what does the plain language mean.  Next, the language of the contract must be read in the context of the entire contract, giving meaning and harmony to all contract wording.  The law favors giving harmonious interpretation to all the language in the contract.  We've written other posts on contract interpretation.  If language can have two reasonable interpretations, it is ambiguous and may then be subject to the rule that the ambiguity is resolved against the drafter, the government.  Government contracts are contracts of adhesion, meaning the government dictates the terms.

In our experience with disputes, the most prevailing failure is that the parties do not read the contract.  Early dispute resolution can be promoted if the parties would just read the contract.  So, before you do anything else when problems arise, study the language in the contract. 

If this seems like 5th grade advice, remember that the father of the American Bar Association Public Contract Law Section and one time Chairman of the Armed Services Board of Contract Appeals, Gilbert A. Cuneo, with whom we had the honor of practicing government contract law, was most fond of saying, "When all else fails, read the contract."  He ought to know.

bill@spriggsconsultingservices.com                   bill@spriggslawgroup.com