It is indeed a new day in government contracts. AI will assist in quickly identifying errors, conflicts, omissions, and inconsistencies in solicitations and resulting contracts. The test on the allocation of risk of errors is well settled but may now be modified if AI is used as a tool in solicitations and contracts.
AI may also affect the rules on interpretation of contract language when disputes arise as to the meaning of language.
The rule has been that the contractor is held to the standard of a reasonable business person in the normal course of bidding on a contract. The contractor assumes the risk of patent or apparent problems, and the risk stays with the government for hidden or latent defects. The contractor is not expected to ferret out hidden flaws or ambiguities. This same type of test carries over to disputes arising over the meaning of contract language.
Enter the use of AI by the government and by the contractor. If AI usage is permitted and we don't see how it could not be, will the user be held to a higher standard of risk assumption? Will there always be an evidentiary inquiry as to whether and to what extent AI was used? Or will the test stay the same, and only the test application be affected by AI?
The use of AI should benefit contractors and the government. There should be fewer defects in documents issued by the government. Language should be more precise, resulting in fewer disputes. Contractors should have better data from which to decide how to bid.
This powerful new management tool should save time and money in all stages of the procurement and dispute resolution process. Even mediators and judicial tribunals will find it helpful in analyzing data and applying precedential principles.
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