• R.D. Lieberman,Consultant

Course of Dealing

A “course of dealing” is a “sequence of previous conduct between the parties to an agreement which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.” T&M Distribs., Inc., ASBCA No. 51405 (quoting Restatement (Second) of Contracts § 223(1979)). Course of dealing evidence can be used either (1) as extrinsic evidence to interpret ambiguous contract terms or (2) evidence of a waiver of unambiguous contract terms. Id. In a recent Armed Services Board of Contract Appeals Case, the Board used a course of dealing to conclude that a contract was ambiguous, but the prior course of dealing established a common basis of understanding of how the contract was to be interpreted. Raytheon Co., ASBCA Nos. 60448, 60785, June 25, 2020.

Raytheon sold Advanced Medium Range Air-to-Air Missiles to the Air Force. In the Statement of Contents (work), there were two disputed relevant paragraphs:

· 2.a. required Raytheon to produce a certain number of missiles over a three year period of performance.

· 2.b. required Raytheon to provide Systems Engineering/Program Management (“SEPM”) over a one year period of performance.

The case turned on which paragraph covered the production SEPM. If paragraph 2.a. pertained to the production missiles, then Raytheon would have been required to support the missiles for three years. However, if paragraph 2.b. covered production SEPM, Raytheon would have been required to provide SEPM for only one year.

The Board held that there was a course of dealing because, among other things:

· The government repeatedly expressed its understanding that paragraph 2.b covered missile production (prior course of dealing on earlier missile lots).

· The Contracting Officers repeatedly expressed an understanding that paragraph 2.b included production SEPM. This was expressed in numerous Emails from the contracting officers (prior course of dealing on earlier missile lots).

· Other government employees involved in this program verified the government’s understanding that paragraph 2.b. included production SEPM

Raytheon submitted a Request for Equitable Adjustment when the Contracting Officer advised Raytheon that paragraph 2.a. covered three years of SEPM. The Contracting Officer denied the equitable adjustment, and a subsequent claim that were both based on a constructive change because the Contracting Officer insisted that paragraph 2a. covered production SEPM.

The Board held that the parties’ prior course of dealing established that paragraph 2.b covered production SEPM, and Raytheon was only required to support the disputed lots of missiles for one year under paragraph 2.b. Therefore the government had constructively changed the contract by demanding support for three years. Furthermore, when the Government interpreted paragraph 2a as covering production SEPM, and required Raytheon to cover the three year period of SEPM, the Board concluded that there was an order for the change by the government. The Board held that Raytheon was entitled to an equitable adjustment of $48.4 million.

Takeaway. A contractor can benefit if it can show a constructive change in the contract from the way that the same contract had previously been interpreted by the parties. In this case, the Raytheon missiles were a follow-on buy, so the earlier buys, which had similar contract wording, formed an effective basis of a prior course of dealing, and a well-supported constructive change entitling Raytheon to its claim.

For other helpful suggestions on government contracting, visit:

Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes.

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Not a Claim

Contractors should use care when submitting an appeal to a Board of Contract Appeals or the Court of Federal Claims. Contractors must ensure that there is an underlying claim, pursuant to the Contract

The website of Richard Donald Lieberman, a government contracts consultant and retired attorney who is the author of both "The 100 Worst Mistakes in Government Contracting" (with Jason Morgan) and "The 100 Worst Government Mistakes in Government Contracting." Richard Lieberman concentrates on Federal Acquisition Regulation (FAR) consulting and training, including  commercial item contracting (FAR Part 12), compliance with proposal requirements (FAR Part 15 negotiated procurement), sealed bidding (FAR Part 14), compliance with solicitation requirements, contract administration (FAR Part 42), contract modifications and changes (FAR Part 43), subcontracting and flowdown requirements (FAR Part 44), government property (FAR Part 45), quality assurance (FAR Part 46), obtaining invoiced payments owed to contractors,  and other compliance with the FAR. Mr.Lieberman is also involved in numerous community service activities.  See LinkedIn profile at https://www.linkedin.com/in/richard-d-lieberman-3a25257a/.This website and blog are for educational and information purposes only.  Nothing posted on this website constitutes legal advice, which can only be obtained from a qualified attorney. Website Owner/Consultant does not engage in the practice of law and will not provide legal advice or legal services based on competence and standing in the law. Legal filings and other aspects of a legal practice must be performed by an appropriate attorney. Using this website does not establish an attorney-client relationship. Although the author strives to present accurate information, the information provided on this site is not guaranteed to be complete, correct or up-to-date.  The views expressed on this blog are solely those of the author. FAR Consulting & Training, Bethesda, Maryland, Tel. 202-520-5780, rliebermanconsultant@gmail.com

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