Words Matter

Remember the adage, “what you say today could bite you tomorrow.”

Recently, a Contractor won its argument before the Armed Services Board of Contract Appeals (ASBCA) because the other party to the contract (the U.S. Army) prevented its own defense by insisting upon its own words and later trying to escape them.

Under a contract with the U.S. Army, Appellant/Contractor agreed to provide role-playing, human actors to help train soldiers to deal with civilians on a battlefield.  Before the Army had issued the third of at least six task orders, the Contractor submitted a Request for Equitable Adjustment under Task Order No. 2.

In settling the Contractor’s Request for Equitable Adjustment, the Army drafted the language of a Contract Modification (Mod) stating “there are no further requests for equitable adjustments or claims to be submitted under this contract.”  The Mod language was not limited to claims or requests by the Contractor.  As such, the language included claims or requests by the Contractor AND the Army.  This was the linchpin.  Later, the Army lost its claim against the Contractor for damages related to Task Order No. 2 as the very language drafted by the Army in Mod 4 prevented the Army’s later claim.

Appeal of Supply & Service Team GmbH, ASBCA No. 59630, decided March 1, 2017.

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