The Christian Doctrine
The Christian Doctrine comes into play when the FAR requires a certain clause be included in a government contract but the government fails to include it. Depending on the nature and substance of the government contract in question, the FAR requires that certain FAR contract clauses be included in the contract (most of which are found in FAR Part 52), either in full text or by incorporated by explicit reference. The FAR’s contract clauses are designed, in part, to protect the government’s interests in the performance of the contract. However, agencies will sometimes award contracts that lack a required clause which raises the question of whether the requirements of that clause apply. In certain circumstances, the courts and boards of contract appeals will “read” required clauses into contracts which lack them, treating the clause as a term of the contract despite its absence.
The precedent for “reading in” absent but mandatory clauses into a contract is known as the Christian doctrine, taking its name from G.L. Christian & Associates v. United States, a 1963 opinion issued by the Court of Claims (the predecessor to both the Court of Federal Claims and the Court of Appeals for the Federal Circuit). See generally 312 F.2d 418 (Ct. Cl. 1963). In that case, the court found that certain required contract terms allowing the government to terminate contracts for its convenience should be read into contracts that lacked those terms because the terms represented a “deeply ingrained strand of public procurement policy,” and because federal regulations can “fairly be read” as permitting the clause to be read into the contract since they require agencies to incorporate the clause.
Pursuant to the Christian doctrine, courts and boards of contract appeals have read a variety of FAR clauses into a contract, including those allowing the government to terminate contracts for default, Sabre Eng’g Corp., ASBCA No. 24133, 81-2 B.C.A. ¶ 15,310; addressing protests after award, COMSI, Inc., ASBCA No. 34,588, 88-1 B.C.A. ¶ 20,245; and governing contractors’ use of government property, Hart’s Food Serv., Inc., ASBCA No. 34,588, 88-1 B.C.A. ¶ 21,789. Most recently, in K-Con, Inc., v. Sec’y of the Army, the Federal Circuit read FAR 52.228-15, Performance and Payment Bonds, into a contract for construction services, even though the Government issued the solicitation using Standard Form 1449, which is for commercial items. 908 F.3d 719, 725 (Fed. Cir. 2018). The K-Con Court found that, because the contract was patently ambiguous as to whether it was for construction or for a commercial item, the contractor waived his right to argue that the contract was for a commercial item. Id. at 723. Then applying the Christian Doctrine, the Court found that the performance and payment bonds were mandatory for construction contracts and expresses a significant and deeply engrained strand of public procurement policy. Id. at 724-25. Other courts have also declined to read in certain clauses, as the Court of Federal Claims did in Kudsk Constr., Inc. v. United States, 144 Fed. Cl. 446, 454 (2019), with respect to certain reporting requirements under ARRA. The Kudsk court found that the Government did not satisfy the second Christian prong, because ARRA “only remained part of federal government procurement policy for about five years, beginning with 2009,” which paled in comparison to policies in Christian and K-Con, which had been engrained in procurement policy for almost 70 years and 80 years, respectively. Id. at 454.