By Bruce Jervis
It is not surprising that construction contracts use trade terminology to describe the work to be performed. While not in general use, these terms are parlance within the industry and are a shorthand method of describing work. They are believed to be universally understood within a trade. But are they?
A recent federal contract used a trade term in its title, and then objectively described work that arguably was inconsistent with that term. There was conflicting expert testimony as to what the term did and did not mean.
The Court of Federal Claims said it didn’t need to decide what the term meant. Trade terminology cannot trump the otherwise unambiguous terms of a contract. It can illuminate the intended meaning of a vague contract provision, but cannot alter a clearly stated contract requirement.
That being the case, does it make sense to use trade terminology to describe work? Wouldn’t it be better to objectively describe work requirements without the use of terms that are essentially slang? Or, is trade terminology sometimes necessary to indicate the parties’ intent? And, isn’t shorthand often more practical than lengthy specifications, particularly on smaller projects? Your comments are welcomed.