October 16, 2020 Public Contract Law Journal

The Unpredictable & Often Misunderstood Christian Doctrine of Government Contracts: Proposed Approaches for Removing Harmful Uncertainty

by Michael D. Pangia

Michael D. Pangia (mdpangia@gmail.com) prepared this article while pursuing his Master of Laws in Government Procurement Law at The George Washington University Law School. He thanks Christopher Yukins, Professor and Co-Director of the government procurement law program at The George Washington University Law School, for his guidance. Michael currently serves as an acquisition attorney for the U.S. Army. The views in this article are those of the author and not those of any U.S. agency.

Abstract

The Christian doctrine is arguably one of the most well-recognized doctrines of public procurement in the United States. Under the Christian doctrine, a mandatory government contract clause that was not included in a government contract may be assumed included in the contract by operation of law, even when the clause is not actually written into or referenced by the contract. Though the Chrisian doctrine arguably supports the checks and balances inherent in the U.S. system of government, in reality, the doctrine limits the government’s access to the goods and services it needs to remain competitive on the world stage. This paper argues that the Christian doctrine adds unnecessary uncertainty and complexity to government contracts and should be supplanted or eliminated to provide the predictability and consistency required of well-developed public procurement systems.

I. Introduction

The United States is bound by its contracts the same way individuals are … except when it isn’t. The Christian doctrine is one of those features of the U.S. federal procurement system that departs significantly from the common law applicable to contracts between private parties.1 The doctrine’s problematic effects are amplified because contracts with the federal government already contain complexity and risk greater than what is found in typical private contracts. To further require that government contractors face unexpected and unpredictable reformation of their contracts only exacerbates the challenges associated with doing business with the government. Yet unanticipated contract reformation is exactly what the judicially created Christian doctrine enables.

The Christian doctrine is often understood to stand for the proposition that a mandatory contract clause that expresses a significant or deeply ingrained strand of public procurement policy may be included in a government contract by operation of law, even when the clause is otherwise absent from the contract.2 This view is a gross oversimplification but serves as an ideal starting point for a more thorough treatment of the doctrine.

To provide a practical example of how the doctrine might work, consider a hypothetical commercial company that sells and installs prefabricated storage sheds. The government may seek to purchase two sheds at a fixed price, using simplified commercial-item procedures and contract forms that are intended to closely resemble transactions in the commercial marketplace.3 The company would view the transaction as delivery of two goods/ supplies (the prefabricated buildings) with some work incidental to installation. Potentially unbeknownst to this company is that installing a concrete pad and connecting power to the prefabricated sheds likely constitutes “construction” as defined by the Federal Acquisition Regulation (FAR).4 This classification is legally significant because construction contracts with the government require performance bonds.5 As a result, even though this company’s commercial-style contract for two prefabricated sheds does not expressly contain any requirement for the company to obtain performance bonds, the government will be able to successfully argue, by operation of the Christian doctrine, that performance bonds are required.6 While commercial firms inexperienced with government contracts may view this result as absurd, this scenario mirrors the general facts in K-Con, Inc. v. Secretary of the Army.7 Government procurement experts have highlighted the K-Con decision as a reason for commercial suppliers to “write off the Government as a troublesome customer.”8

As discussed below, the Christian doctrine creates a number of unnecessary challenges for the U.S. public procurement system. The effect of the Christian doctrine is that the express written terms of a contract with the government are anything but conclusive. Rather, the contract may in fact contain — by operation of law — not only the clauses written in the contract but also any of the hundreds of other potential clauses that might apply to the contract but were not actually included. Determining which of these other binding-but-unlisted clauses might apply requires prospective contractors to analyze not only the written contract, but also a large portion of the FAR and any applicable supplements, which potentially total thousands of pages. Further compounding the problems that the Christian doctrine creates, the doctrine is often misunderstood by the private sector — and sometimes by government officials as well.9 This confusion is understandable, because the doctrine directly conflicts with normal commercial practice. Most private-sector executives and government officials were taught that the best way to know with certainty what terms are in a given contract is to read the contract. Unfortunately, as a result of the Christian doctrine, this otherwise sound advice is not completely true.

As a policy matter, predictability is generally a defining feature of contract law and lends legitimacy to any public procurement system. Certainty and predictability of outcomes promote the rule of law and allow citizens to rely on transactions — either with other citizens or with the government.10 To this end, one of the primary purposes of creating the Court of Appeals for the Federal Circuit was to promote uniformity in the law with regard to the specialized subject matter within the Court’s exclusive appellate jurisdiction.11 Despite being overlooked in most discussions of public procurement improvement or reform, the Christian doctrine is ripe for critical review.12 This review is necessary because the doctrine undermines the predictability, and therefore legitimacy, of the federal procurement system.

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