ERRORS, CONFLICTS, AND OMISSIONS

In Spearin v. United States, 248 U.S. 132 (1918), the Supreme Court established the doctrine that the government has the implied duty to provide descriptions of what it is buying free from defects, including errors, conflicts, omissions, and inconsistencies with other contract requirements. The government warrants that its work specifications if followed, will provide a satisfactory and safe result. Defects in the statements of work were a breach of contract. For reasons we have discussed, the boards of contract appeals did not have jurisdiction over breach of contract actions until 1978. Hence, the breach became a constructive change under the Changes clause and labeled defective specification.

For the most part, the government cannot avoid the warranty by exculpatory clauses unless they reasonably shift the risk to the contractor to discover patent problems. The warranty attaches to all types of statements of work but to a lesser degree as performance details are left to the contractor. The warranty also applies when the government approves and adopts the statement of work, and the government remains liable even when it obtains specifications from a third-party contractor.

Nearly all contract disputes involve contract document interpretations of alleged errors, conflicts, omissions, and inconsistencies to some degree. Most of these disputes can be avoided by careful contract administration. The government bears the responsibility initially to write an error-free document. The government now has an artificial intelligence tool that should greatly assist in writing, reviewing, and correcting its contract document problems before issuing its solicitations. Likewise, the contractor has a duty before bidding to raise, with the help of AI, any issues they see.

The most important aspect of contract management is the preparation and review of the contract documents. Government contracts are contracts of adhesion, meaning the government dictates the terms and conditions. It is incumbent on the government to do a better job of preparing its contract documents. However, contractors also need to pay more attention to contract interpretation rules and raise issues before bidding.

Both parties now have excellent tools to help with their respective duties. The importance of using artificial intelligence should be a hot topic of discussion in all venues, forums, and mediums.