Payne Hackenbracht & Sullivan

Contra Proferentum

Under the rule of Contra Proferentem, "where the Government draws specifications which are fairly susceptible of a certain construction and the contractor actually and reasonably so construes them, justice and equity require that that construction be adopted." Folk Construction Co., Inc. v. United States, 2 Ct. Cl. 681 (1983).

The underlying issue in the application of "contra proferentem" is the reasonableness of the contractor's interpretation. Where the contractor can establish that its interpretation falls within the "zone of reasonableness," the contract will be construed against the government. See W.P.C. Enterprises, supra; City Electric, Inc., ASBCA 24565, 82-2 BCA 16057 (1982). Thus, the contractor's interpretation will be upheld even if it is not the most preferable one:

In truth, we believe that Respondent's interpretation is the best and preferred one, but that is not the test. If there are two reasonable interpretations, as we have found that there were here, Appellant's interpretation will be accepted and the contract construed against the drafter.

Swinerton & Walberg Co., ASBCA 18925, 75-1 BCA 11,052 at p.52,592 (1975).