Saturday, November 27, 2010
I agree with Steve Feldman's comments on P&D Consultants that we published yesterday. My point in the original post (which wasn't clear) is not that P&D Consultants is wrong, but that the same considerations that militate in favor of enforcing a no-oral-modifications clause in a government contract are present in private contracting.
Years ago in practice I was involved in a lot of litigation over oral change orders, and I know what an absolute mess they can cause. The government obviously does not want to be bound every time some employee (even if it's the contracting offier or the Air Force general in charge of the program) says something. But that's the same reason that private parties put those clauses in their agreements. My point was that courts seem to think those clauses serve a very valuable protective function when it's the government's money, but not when it's a private transaction. I don't see the distinction.