Christian Doctrine

Background

The typical government contract contains a laundry list of standard Federal Acquisition Regulation (FAR) or Defense Federal Regulation Acquisition Supplement (DFARS) clauses that outline the requirements for the construction or services to be provided. These clauses are either expressly stated, i.e. written out in full length in the contract, or incorporated by reference to a particular provision which the contractor must research for the specific language.

But contractors beware: not all contracts are what they seem. Since 1963, courts have held that certain clauses are so integral to public procurements that they are deemed incorporated by operation of law, even if they are omitted from the contract.

Christian & Associates v. United States

The “Christian Doctrine” arises from the Court of Claims’ 1963 decision in G.L. Christian & Associates v. United States. The contractor there sought to recover anticipated profits on a contract that terminated by the U.S. Department of the Army. The government sought to avoid liability for anticipated profits, relying on the standard termination for convenience clause, which disclaims government liability for anticipated profits on unperformed work.

Interestingly, the termination for convenience clause was not referenced or incorporated in G.L. Christian’s contract. The government argued that, despite its absence, the clause should be read into the contract as a matter of law. In support of its argument, the government relied on Section 8.703 of the Armed Services Procurement Regulations (“ASPR”), which requires the termination clause be inserted in all fixed-price construction contracts such as the one at issue. The Court agreed, stating that since World War I, the limitation on anticipated profits in a termination case was “a deeply ingrained strand of public procurement policy.”

Principle of Government Contract Law

A principle of government contract law known as the Christian doctrine states that certain clauses are of such importance in public procurements so as to be considered incorporated by operation of law.

The government has a responsibility to notify contractors of contract requirements, whether expressly or through incorporation by reference. However, since G.L. Christian & Assocs. v. United States, 312 F.2d 418 (Ct. Cl. 1963), a clause that conveys a deeply ingrained strand of public procurement policy is considered to be included even if the government fails to include it in the prime contract.

Must Be Significant or Deeply Ingrained Part of Public Procurement Policy

The Christian doctrine's applicability "turns not on whether the clause was intentionally or inadvertently omitted, but on whether procurement policies are being avoided or evaded (deliberately or negligently)." S.J. Amoroso Const. Co., Inc. v. U.S., 12 F.3d 1072, 1075 (quoting G.L. Christian & Assocs., 320 F.2d at 351).

Therefore, the principle does not permit the automatic incorporation of clauses; rather, it applies only to provisions that are a significant or deeply ingrained part of public procurement policy. For example, when improper FAR terms are incorporated into a contract, under the Christian doctrine, the correct FAR provisions would control if they are considered a deeply ingrained aspect of public procurements. Or, say, when a terminations clause – a provision having been held to be sufficiently significant – is omitted, courts will read it into the contract and enforce it.

List of Christian Doctrine Clauses

While no universal list of clauses covered by the Christian doctrine exists, various courts and boards have consistently held that the disputes clause, termination clauses, changes and payment clauses, and clauses implementing provisions of the Buy American Act, Fly America Act and Truth in Negotiations Act meet the significant or deeply ingrained strand of public procurement policy standard. The Christian doctrine does not require a court to insert a clause into a government contract; however, it has been utilized in numerous instances and as to a variety of provisions. As such, contractors will want to be mindful of arguments based on failure to include a contract clause or including the wrong clause since, per the Christian doctrine, doing so is not necessarily a bar to the government’s ability to enforce or recover under an aspect of the contract.

Applicability of the Christian Doctrine to Subcontractors

Courts will likely not use the Christian doctrine to read a fundamental tenet of procurement contracting into a subcontract given the prime/sub relationship is one between private parties. However, a risk does exist, as at least one court has incorporated a government contracts requirement into a subcontract.

The case is UPMC Braddock v. Harris, 934 F. Supp. 2d 238, 241 (D.D.C. 2013), opinion vacated, appeal dismissed sub nom. UPMC Braddock v. Perez, 584 Fed. Appx. 1 (D.C. Cir. 2014)(unpublished). This case was so unusual, and involved hospitals, healthcare and the DOL. Applicability to other cases if difficult, therefore no more discussion is captured here.