Government Contracts: Key Rules of Construction and Interpretation, Lessons From Recent Decisions

Contra Proferentem, Government's Duty of Good Faith and Fair Dealing, FAR's Hierachy of Definition

Recording of a 90-minute CLE webinar with Q&A


Conducted on Wednesday, September 25, 2019

Recorded event now available

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Program Materials

This CLE webinar will discuss key rules of contract construction and interpretation that arise in government contracting, including the parol evidence rule, the government's duty of good faith and fair dealing, the intrinsic evidence rule, the plain meaning rule, the Federal Acquisition Regulation's (FAR) hierarchy of definition, contra proferentem in federal contract litigation, and controlling board and claims court decisions. The panel will also discuss how a contractor's actions--or inactions--throughout the federal acquisition process will impact how the contract is later interpreted.

Description

Unlike commercial contracts, government contracts are subject to a unique framework of laws, regulations, federal court and board decisions, and rules of interpretation. Government contracting officers have broad discretion to draft contracts to protect the government's interests, subject to procurement statutes, regulations, and executive orders regulating government contracts. Part 52 of the FAR provides for dozens of standard terms agencies must include in their agreements with contractors, including mandatory subcontractor flowdown terms and requirements.

Contract construction and interpretation is the most litigated issue in government contracting. And when problems arise in performing a contract, the parties can address them through their contract rights. Contract disputes can be reviewed and resolved by federal courts, such as the U.S. Court of Federal Claims, or a board of contract appeals under the Contract Disputes Act. These decisions form the framework for approaching government contract construction and interpretation.

Counsel to government contractors--both primes and subs--must understand the fundamental principles of contract interpretation in the government contracts context. Counsel must grasp the nuances of the intrinsic evidence and parol evidence rules, the government's duty of good faith and fair dealing, ambiguity and the plain meaning rule, the FAR's hierarchy of definition, and contra proferentem and its exceptions, among others.

Listen as our veteran panel of government contracts attorneys provides a comprehensive overview of the general rules of contract interpretation when contracting with the government, including solicitation and proposal management, performance requirements, and dispute resolution. The panel will discuss recent developments in government contract construction and interpretation, explain the unique contractual obligations and legal risks of contracting with the government, and provide best practices for ensuring contract compliance and mitigating client risk.

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Outline

  1. Overview
  2. Governing legal framework
  3. Key principles of contractual construction and interpretation
  4. Recent federal court and board of claims opinions
  5. Best practices for advocating issues of government contract construction and interpretation
  6. Specific issues related to solicitation, proposal management, performance requirements, and dispute resolution
  7. Innovative strategies and case studies
  8. Final considerations

Benefits

The panel will review these and other mission-critical questions:

  • What is driving the increase in companies' pursuit of federal government contracting opportunities?
  • What is the process of contract interpretation in federal contract litigation?
  • What is the correct application of the parol evidence rule and the government's duty of good faith and fair dealing?
  • What are the unique contractual risks of conducting business with the federal government--and how can they be mitigated?
  • What are the principles that apply only to the words of the contract document, including the role of the FAR's hierarchy of definition?
  • How can government contractors and their counsel ensure compliance with the relevant regulatory requirements?
  • What is an "ambiguous" clause in a government contract?
  • How do the latest court and board of contract appeals decisions interpret these provisions?
  • What is the role of the plain meaning rule when considering information from outside the contract?
  • What are best practices for incorporating additional information by reference?
  • What are the four key types of extrinsic evidence, and how they are applied to interpret ambiguous contracts?
  • What are the key issues to address in advocating for--or defending--interpretation of contract terms?
  • What are practical strategies and insights into common contract interpretation mistakes and how can proper drafting reduce the likelihood of disputes--and offer significant advantages--if disputes arise with the government?
  • How do courts apply contra proferentem in federal contract litigation, and what are the doctrine's two major exceptions?
  • What enforceability challenges do contractors commonly face?

Faculty

O’Connor, Terrence
Terrence O’Connor

Partner
Berenzweig Leonard

Mr. O’Connor works with government contractors as well as contracting officers, contract specialists, and...  |  Read More

Solosky, Nicholas
Nicholas T. Solosky

Partner
Fox Rothschild

Mr. Solosky’s practice is concentrated on national government contracts and construction related matters with a...  |  Read More

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