PART II

THE CONTRACT

The contract that you and I sign in the business world, no matter how much barely-readable fine print it contains, is much different from the types of contracts (plural) that government contractors and contracting officers deal with. Government contracts come in a lot more varieties than the typical commercial contract—they tend to be so long and confusing that they are hard to interpret and contain clauses rarely found in standard commercial contracts.

Chalk it up to the government being the 800-pound gorilla.

In chapter 6, we take a look at the different types of government contracts. First we distinguish the different kinds of agreements—an umbrella term—the government gets into, including grants and cooperative agreements and concession contracts. Many government agencies, such as the National Park Service’s search for vendors to operate campgrounds in national parks, use concession contracts. These contracts have raised a number of legal controversies—for example, whether or not an agency’s concession contract can be protested.

We then proceed to the creation of express government contracts. These government contracts must have all the essential requirements of any contract: offer and acceptance and consideration, as well as the wild card of “authority”—that is, which government employees are legally competent to bind the government to a deal—an issue that is not as troublesome to the commercial contracting world. The chapter ends with consideration of a contracting officer’s worst fear: doing something that somehow ends up being an implied contract binding the government.

In chapter 7, we take a look at the rules for interpreting language in government contracts. Over the centuries, judges have developed rules to settle controversies over what contract language really means or, even worse, controversies over language that one party thought was in the contract. The chapter reviews various rules that highlight ways to draft contracts so arguments over what the contract means can be reduced.

Chapter 8 deals with the reality that, with the government, a deal is not necessarily a deal. This chapter discusses a number of quirks that are found in administering a government contract. These quirks include using the Changes clause and constructive changes, deadlines that are merely suggestions and not really deadlines, clauses left out of a contract that are really in the contract anyway under the Christian doctrine, and the government’s right to terminate a contract for convenience even though the government contractor has done nothing wrong and is not in default.