Trade Custom and Usage

It is well recognized that if at all possible, a contract should be read as a whole and effect given to all contract terms. Appeals of — Aegis Def. Servs., LLC, f/k/a Aegis Defence Servs. Ltd., ASBCA No. 59082, 17-1 BCA ¶ 36915; Hunkin Conkey Construction Co. v. United States, 198 Ct.Cl. 638, 461 F.2d 1270 (1972); Precision Dynamics, Inc., ASBCA No. 50519, 05-2 BCA ¶ 33,071 at 163,922. Custom and trade usage is to be considered in giving meaning to words. Tidewater Contractors, Inc. v. United States, 131 Fed. Cl. 372, 400 (2017); Gholson, Byars & Holmes Construction Co. v. United States, 173 Ct.Cl. 374, 351 F.2d 987 (1965); A-Son’s Constr., Inc., Appellant, CBCA 3491, 15-1 BCA ¶ 36089. Trade usage or custom may show that language which appears on its face to be perfectly clear and unambiguous has, in fact a meaning different from its ordinary meaning. The decisions of the courts and Boards are replete with declarations of the general rule that evidence of trade practice may not vary or contradict plain contract language. Tidewater Contractors, Inc. v. United States, 131 Fed. Cl. 372, 400 (2017); Gholson, Byars & Holmes Construction Co. v. United States, 173 Ct.Cl. 374, 351 F.2d 987 (1965); A-Son’s Constr., Inc., Appellant, CBCA 3491, 15-1 BCA ¶ 36089.

As stated by the Court of Claims in W. G. Cornell Co. v. United States, 179 Ct. Cl. 651, 670-71 (1967) “… evidence of trade usage and custom may always EXPLAIN or DEFINE, as distinguished from VARY or CONTRADICT, contract language .” PCL Const. Servs., Inc. v. United States, 47 Fed. Cl. 745, 786 (2000).

Updated: August 8, 2018