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.
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. 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. 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. 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). This classification is legally significant because construction contracts with the government require performance bonds. 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. 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. Government procurement experts have highlighted the K-Con decision as a reason for commercial suppliers to “write off the Government as a troublesome customer.”
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. 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. 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. Despite being overlooked in most discussions of public procurement improvement or reform, the Christian doctrine is ripe for critical review. This review is necessary because the doctrine undermines the predictability, and therefore legitimacy, of the federal procurement system.
As a practical matter, the more barriers to entry that a public procurement system imposes, the greater the risk that private firms will be discouraged from doing business with the government. The complexity and uncertainty created by the Christian doctrine appear to contribute to these barriers to entry, which can impede the government’s access to rapid technological advancements from industry. As recognized in the 2018 National Defense Strategy, the United States’ comparative technological and military advantages over competitors has been eroding. Adversaries now have similar access to emerging technologies, and the United States will continue to be challenged by adversaries’ technological advantages unless the United States modernizes the way it does business. The Christian doctrine is one area of the public procurement system ripe for improvement — by either eliminating the doctrine altogether or by at least removing the subjectivity related to its application.
This paper first provides a broad overview of the Christian doctrine before assessing its current effects and then suggesting potential modifications to limit the doctrine’s harmful effects on the U.S. public procurement system. Part II provides the historical context and evolution of the Christian doctrine. For government contracts practitioners oversaturated with discussions of acquisition “reform,” Section II.C includes a standalone primer on the Christian doctrine, including finer points such as application to non-FAR based procurements, subcontracts, and state court causes of action. Part III highlights the problems and challenges associated with the doctrine and provides the rationale for narrowing or eliminating the doctrine. Finally, Part IV discusses potential modifications of the Christian doctrine aimed at reducing complexity and uncertainty.
While the Christian doctrine is raised during government contracts litigation with some regularity, three cases established the Christian doctrine as it exists today. Section II.A. discusses the original G.L. Christian & Associates v. United States case establishing the Christian doctrine in order to provide an understanding of the history of, and original justifications for, the doctrine. Section II.B. describes how the doctrine has continued to increase in both complexity and uncertainty as a result of two main Federal Circuit decisions (General Engineering & Machine Works and S.J. Amoroso Construction Co.) and the Government Accountability Office’s (GAO) peculiar treatment of the doctrine. Section II.C. provides a practitioner focused snapshot of the current doctrine, identifying areas that are well-settled and those that remain uncertain.
The Christian doctrine was first articulated by the Court of Claims in G.L. Christian & Associates v. United States. The dispute in G.L. Christian & Associates arose from the U.S. Army’s 1958 decision to deactivate Fort Polk in Louisiana. At the time of the Army’s decision, the Army had already contracted for the development of 2,000 housing units at Fort Polk. Based on its decision to deactivate Fort Polk, and the resulting lack of need for new housing units, the Army terminated its construction contract for the government’s convenience (preventing an unnecessary public expenditure). The contract was only approximately two percent completed when terminated; however, the contractor filed a claim for breach of contract seeking anticipatory profits.
Unfortunately for the Army, the contract did not actually contain a Termination for Convenience clause, which would normally permit the government to unilaterally terminate the contract for nearly any reason. If the contract had contained (literally or by operation of law) a Termination for Convenience clause, it would have expressly permitted termination under the circumstances, without any liability of the Army to the contractor for anticipatory profits or other breach damages. Had there been a Termination for Convenience clause, no breach of contract would have occurred. Thus, the dispositive legal issue in G.L. Christian & Associates was whether the otherwise required Termination for Convenience clause should apply to the government contract in dispute, even though the clause was not actually included in the contract.
The Termination for Convenience clause, in a sense, provided the perfect scenario for the development of the Christian doctrine since the government’s ability to terminate contracts for its own convenience is one of most extraordinary, well-settled, and distinctive features of the U.S. public procurement system. Undeterred by the actual absence of the clause, the Army argued that the contract should be read by the Court as though it contained a Termination for Convenience clause as a matter of law. The Army’s argument was premised on the fact that the Termination for Convenience clause was required by the applicable procurement regulations and Army contracting officials did not have authority to omit the clause.
In deciding the dispute, the Court of Claims determined that (1) the federal procurement regulations in effect at the time required the inclusion of the Termination for Convenience clause in the contract and these regulations had the force and effect of law; (2) Termination for Convenience clauses were a fundamental part of U.S. defense contracting throughout World Wars I and II, and an experienced contractor would have been aware of the government’s power to unilaterally terminate its contracts without breach; (3) Congress would not have sanctioned a large military housing project without the safeguards offered by such a clause; and (4) the specific contract at issue included multiple references to the government’s general convenience termination power, suggesting the Termination for Convenience clause was applicable to the contract. Based on its findings, the Court of Claims held the Termination for Convenience clause was incorporated or “read into” the contract as a matter of law. Therefore, the Army did not breach the contract by early termination, and the contractor was not entitled to any anticipatory profits.
G.L. Christian & Associates is generally understood to stand for the proposition that “a court may insert a clause into a government contract by operation of law if that clause is required under applicable federal administrative regulations.” This proposition is considered the original Christian doctrine. One of the express purposes of the doctrine fashioned by the Court of Claims was to prevent “ad hoc encroachment or dispensation” by the executive branch on policy set forth by the legislative branch. The legislative branch sets highlevel federal procurement policy and appropriates funds for procurements, while the executive branch executes federal procurement policy, and the judiciary resolves significant disputes related to procurement policy. To allow officers of the executive branch to disregard, intentionally or unintentionally, procurement policies established by the legislative branch could undermine the separation of powers and the checks and balances the Constitution seeks to maintain.
The fundamental legal underpinning of the Christian doctrine is the established principle that the United States is neither bound by, nor estopped by, its agents who act beyond their authority or contrary to law. If a government contracting official did not have authority to omit a contract clause either required by law (or by a regulation with the force of law), then the government is not bound by that unauthorized omission.
The original Christian doctrine, even in its simplest form (e.g., all mandatory contract clauses are read into government contracts as a matter of law), arguably added uncertainty to government contracts because clauses not actually contained in government contracts could now be considered included by operation of law. As experienced government contracts practitioners know, determining whether a certain clause is “mandatory” sometimes requires its own challenging and subjective analysis.
The U.S. Court of Appeals for the Federal Circuit made application of the Christian doctrine even more challenging for procurement professionals in 1993, when the court further obfuscated the doctrine in its first two Christian doctrine decisions.
1. The Federal Circuit weighs in (for the first time)
The Christian doctrine’s most significant modification came from the Federal Circuit’s decisions in S.J. Amoroso Construction Company v. United States and General Engineering & Machine Works v. O’Keefe, both decided in 1993. In these cases, the Federal Circuit limited the original Christian doctrine but made its application subjective by clarifying that the Christian doctrine does not permit automatic incorporation of every required contract clause by operation of law. Rather, the Federal Circuit held that courts and other tribunals should normally only consider for inclusion a contract clause that is both mandatory and “express[es] a significant or deeply ingrained strand of public procurement policy.” The Federal Circuit also clarified that it does not matter whether the clause was omitted intentionally or unintentionally.
General Engineering was the first Federal Circuit case to directly address the Christian doctrine and was based on cost-allocation requirements under a government contract awarded by the U.S. Navy in 1982 for supplies and services. The specific dispute centered around whether General Engineering was required to keep separate cost pools for material handling charges and labor costs to prevent the government from being charged twice for material handling (once as a direct cost and once as part of the indirect cost of overhead). The applicable clause, which was required by a Defense Acquisition Regulation in effect at the time, but was not present in the contract, permitted reimbursement of a contractor for material handling charges only if those charges were in a separate cost pool from labor hour costs. General Engineering did not maintain these separate cost pools. Thus, if the Christian doctrine incorporated the required clause as a matter of law, the contractor would not have been entitled to the approximately $86,000 in material handling costs that it sought. The Federal Circuit affirmed the Claims Court’s application of the Christian doctrine to include a mandatory but otherwise absent cost-reimbursement related clause. The application of the Christian doctrine was dispositive, and the Federal Circuit decided in favor of the Navy.
The most significant principle set forth in General Engineering was the Federal Circuit’s proclamation that the “Christian Doctrine applies to mandatory contract clauses which express a significant or deeply ingrained strand of public procurement policy.” The Court found that the applicable clause was intended to discourage contractors from charging duplicate costs and the “unnecessary and wasteful spending of government money.” Therefore, the clause was considered “sufficiently ingrained in public procurement policy to properly trigger use of the Christian Doctrine.”
The Federal Circuit possibly viewed its holding in General Engineering as adding a limiting principle to the Christian doctrine since the court emphasized that the doctrine did not “permit the automatic incorporation of every required contract clause.” However, the decision effectively resulted in increased uncertainly to the U.S. public procurement system and a higher likelihood of inconsistency when applying the doctrine. This is because determining what constitutes “a significant or deeply ingrained strand of public procurement policy” is highly subjective. The Federal Circuit also increased complexity of the doctrine in its General Engineering decision by adding that the doctrine may also be applied to “less fundamental or significant mandatory procurement contract clauses” when those less-fundamental or less-significant clauses are not written to benefit or protect the party seeking incorporation.
2. The Federal Circuit weighs in, again
The second major Christian doctrine case at the Federal Circuit was Amoroso. Like G.L. Christian & Associates, Amoroso was based on a contract dispute related to a U.S. Army construction contract, entered into in 1987. The contract was undisputedly subject to the Buy American Act and required the applicable Buy American clause implementing the Act for construction contracts. Instead of including the required Buy American clause for construction contracts, however, the Army included the related, but substantively different, Buy American clause intended for supply contracts.
The essence of the dispute in Amoroso was whether each piece of steel (typical steel beams used in construction) delivered to the construction site needed to individually meet Buy American requirements or whether all of the steel pieces, in the aggregate, could meet Buy American requirements. The steel beams the contractor provided met Buy American requirements in the aggregate, but not individually. The correct, but inadvertently omitted, Buy American clause for construction contracts would have resolved this dispute in favor of the Army, since supply contracts permitted aggregation to meet Buy American requirements, but construction contracts did not.
The Federal Circuit ultimately upheld the Claims Court’s ruling in favor of the Army, based on the conclusion that the correct Buy American clause for construction contracts was read into or incorporated into the parties’ government contract by operation of law. The Court, however, reasserted the limiting principle it expressed in General Engineering earlier that year: the Christian doctrine should apply only to clauses that express “a significant or deeply ingrained strand of public procurement policy.” The Court concluded that the Buy American clause for construction contracts was a required clause and expressed a deeply ingrained strand of U.S. public procurement policy. Further clarifying the Federal Circuit’s interpretation of the Christian doctrine, the Court explained that whether a clause is intentionally or unintentionally omitted is irrelevant when applying the doctrine.
3. The Government Accountability Office tightens the Gordian knot
The Christian doctrine is widely recognized and has been applied by the Federal Circuit, other Federal Courts of Appeals, the Court of Federal Claims, Boards of Contract Appeals, other Federal administrative agencies. Therefore, it may be surprising to some government contracts professionals that the GAO, when exercising its bid protest jurisdiction, does not apply the doctrine to solicitation provisions during the pre-contract award stage of an acquisition. While the Christian doctrine is viewed justifiably as an unwieldy and unnecessary part of the U.S. public procurement system, the GAO’s departure from the Court of Federal Claims in this area may unnecessarily increase uncertainty and inconsistency between bid protest forums.
The GAO’s consistent position is that the Christian doctrine provides only for incorporation by law of certain mandatory contract clauses into otherwise validly awarded government contracts. The GAO’s long-held view is that the doctrine does not stand for the proposition that provisions may be similarly incorporated, by law, into solicitations.
The GAO’s position is accurate in that the Federal Circuit’s Christian doctrine cases have not expressly applied the doctrine to contract solicitations. Nonetheless, the GAO’s position is still somewhat unpersuasive given the history and purpose of the doctrine. For example, if the purpose of the Christian doctrine is to protect the government against unauthorized acts of executive branch officials, this purpose would seem to apply equally to solicitations and contracts, especially considering the clauses in a solicitation will ultimately become the contract.
In evaluating the GAO’s position, it is worth noting that the Federal Circuit has stated that (1) the Christian doctrine “guard[s] the dominant legislative policy against ad hoc encroachment or dispensation by the executive;” (2) the Christian doctrine “echoes Supreme Court law that the United States is neither bound nor estopped by its agents who act beyond their authority or contrary to statute and regulations;” and (3) procurement regulations that “have the force and effect of law, and, if they are applicable … must be deemed terms of the contract.” These three principles appear to apply equally to solicitation provisions and contract clauses. A point likely self-evident to government contracts practitioners is that the mandatory contract clauses that the Christian doctrine addresses must be included in pre-award solicitations to become part of the resulting contracts.
While obvious, it is worth reiterating that government officials are required to follow the law at all stages of the procurement process. One of the functions of the Christian doctrine is to ensure that government acquisitions comply with legal requirements, by operation of law if necessary, even when government officials fail to ensure that all legal requirements in the acquisition process are satisfied. As a matter of policy, if the United States is not bound or estopped by its agents when those agents fail to include mandatory clauses in government contracts, the United States should seemingly also not be bound by its agents when they omit the same provisions or clauses from a solicitation.
A more expansive interpretation of the Christian doctrine — one that also allows mandatory and significant solicitation provisions to be incorporated into solicitations by operation of law, as opposed to the narrow interpretation of the GAO that permits only the incorporation of contract clauses into contracts — would appear more consistent with the purpose and legal underpinning of the Christian doctrine.
The Court of Federal Claims, in at least one decision, agreed with this expansive interpretation, permitting the incorporation of solicitation provisions under the doctrine. This difference in pre-award application of the Christian doctrine between the GAO and Court of Federal Claims may have resulted from the court’s broader jurisdiction, which supports the court’s consideration of policy rationale and the contract administration effects of its government contracts decisions.
What follows is a practitioner’s guide to the Christian doctrine, intended to assist with determining which areas of the Christian doctrine are now well-settled and where there are still open questions.
While certain challenges still surround the Christian doctrine, some of its general principles remain easily identifiable. This section provides a practical overview of the basic elements of the Christian doctrine for government contract professionals.
1. Application of the Christian doctrine is discretionary for courts and boards.
Even when the Christian doctrine applies, it permits — but does not require — incorporation by operation of law. Given the discretionary nature of the Christian doctrine, practitioners requesting application of the Christian doctrine should include arguments and rationale that go beyond merely establishing that the elements of the doctrine are met. Practitioners should seek to include compelling reasons for the application of the doctrine related to the facts of their individual case.
2. The Christian doctrine is for circumstances with disagreement between the parties.
A tenet of the Christian doctrine that has not been stated by any court, but is nonetheless self-evident, is that the Christian doctrine is only applied when there is a disagreement between the contracting parties. If no dispute exists as to whether a particular clause should apply, there is no need for the doctrine: the parties may simply enter a bilateral modification to correct the contract. Including or substituting a clause required by statute or regulation is likely a within-scope modification, since potential offerors should have anticipated any mandatory clauses would apply.
3. The Christian doctrine arguably applies to more than just FAR-based contracts.
Depending on whether a practitioner is arguing for or against the application of the Christian doctrine to a non-FAR based transaction (other transaction agreement (OTA), grant, agreement, etc.), this will likely be a point of significant disagreement. On the one hand, the Federal Circuit opinions squarely addressing the Christian doctrine each do so in the context of a FAR-based procurement contract. On the other hand, the purpose and principles of the Christian doctrine appear to apply with equal weight in non-FAR based transactions, and the cases discussed below support this conclusion.
In United States v. Bills, the U.S. Court of Appeals for the Third Circuit indicated that the Christian doctrine applied to a non-FAR based scholarship agreement under the National Health Service Corps Scholarship Program. In Rockies Express Pipeline LLC v. Salazar, the Federal Circuit considered applying the Christian doctrine to a non-FAR based Precedent Agreement entered into by the Department of the Interior to support an oil pipeline project. Moreover, in Rockies Express Pipeline LLC, the Federal Circuit at least reached the question of whether a termination for convenience clause was required in a non-FAR based agreement — a promising development to those arguing for broader application of the doctrine. As further support for broad application of the Christian doctrine, the doctrine has even been applied to U.S. Small Business Administration protests.
If the Christian doctrine is going to continue, it is only logical for it to apply to the various types of transactions the government enters into. When the government is entering into a grant, cooperative agreement, lease, or OTA, the executive branch and its officials have the same duty to comply with laws requiring certain terms be included in those transactions. For example, if an agreements officer (the individual with authority to bind the government to an OTA) intentionally or unintentionally omitted a clause that allows the Comptroller General to access records for a high-value OTA, a court or administrative body should be able to incorporate the clause as a matter of law under the Christian doctrine, since this requirement is expressly required by statute. While there is limited precedent in this area, practitioners may consider raising, and also be prepared for the government to raise, the Christian doctrine whenever a significant or longstanding legal requirement is omitted from any type of executive branch agreement.
4. The Christian doctrine has not been adopted by all Federal Circuits.
In addition to the Federal Circuit, the Third, Fifth, Sixth, and Ninth Circuits appear to recognize the Christian doctrine, although there has been limited application in these circuits. While each of these Circuits appears to follow the Christian doctrine, practitioners should note that each of these Circuits has only one case, the cases are generally not recent, and the cases display varied levels of regard for the doctrine. Of course, the Federal Circuit’s treatment of the Christian doctrine is of primary significance because the Contract Disputes Act channels government contract disputes to the Court of Federal Claims (if they do not go to an administrative board first) with appeals rising to the Federal Circuit. For disputes that end up in other circuits, practitioners should review the applicability of the doctrine in that circuit.
5. The Christian doctrine is generally understood not to apply to subcontracts.
While the Christian doctrine appears to have never been conclusively applied to subcontracts, this is not a settled area of the law. However, the policy rationales supporting the Christian doctrine (for example, protecting the government from the unauthorized acts of its agents) would normally not be served by applying the Christian doctrine to subcontracts between private parties.
6. The Christian doctrine applies only to mandatory contract clauses and regulatory provisions.
As discussed in infra Section III.A.1., identifying a “mandatory” clause is sometimes a complicated step that may require a multipart legal analysis. This means that, even with the assistance of legal counsel, it will often be a challenge for a firm to determine if the Christian doctrine applies to a particular circumstance.
7. The Christian doctrine only applies when the source of the mandatory requirement has the force and effect of law.
An often-overlooked aspect of the Christian doctrine, which requires an administrative law analysis, is that the doctrine applies to only mandatory requirements that have the force and effect of law. The FAR and FAR Supplements have the force and effect of law, but a local or internal organizational policy that has not been published in the Federal Register or that has not otherwise complied with any rulemaking procedures likely does not.
8. The Christian doctrine traditionally applies only when the mandatory clause (or other requirement) represents significant or deeply ingrained public procurement policy.
The “significant or deeply ingrained public procurement policy” is a highly subjective standard. For example, judges on the Armed Services Board of Contract Appeals (ASBCA) have reached differing conclusions as to whether the same government property clause represents significant or deeply ingrained public procurement policy. Application of the standard may require considering prior decisions addressing the specific or similar clauses, whether the clause is required by statute, how long the clause has been in effect, and the underlying purpose of the clause. Fortunately or unfortunately — depending on which side is being argued — there are decisions on the application of the Christian doctrine for only a relatively small number of contract clauses.
9. The Christian doctrine may still apply even if the mandatory clause or requirement does not represent a significant or deeply ingrained policy.
In a confounding wrinkle to the Christian doctrine, the Federal Circuit has held that, in some cases, the Christian doctrine may apply to clauses that represent less significant or not deeply ingrained policy if the clause is not for the benefit or protection of the party seeking inclusion of the clause. This nuance of the doctrine is rarely applied, but practitioners should be aware of its existence.
10. In addition to being used to incorporate a clause that is missing from a contract, the Christian doctrine may also be used to substitute an incorrect clause with the correct or required clause.
This point is self-explanatory but often overlooked. The Christian doctrine supports both inserting missing clauses and substituting incorrect clauses. The policy behind the Christian doctrine arguably would also support removing a clause — either prohibited by or inconsistent with law or regulation — from a government contract.
11. For the Christian doctrine, forum matters.
As discussed in Section II.B.3, the Court of Federal Claims and the GAO apply the doctrine differently to bid protest cases. If either an offeror or a government contracting official identifies a concerning error or omission in a solicitation, they should seek resolution prior to the time proposals are due. In a bid protest context, contractors should identity arguments that do not rely on the Christian doctrine, and if Christian doctrine-based arguments are necessary, they should probably be made at the Court of Federal Claims. At the ASBCA, the government does not hesitate to make arguments based on the Christian doctrine, and the Board does not appear reluctant to apply the doctrine. Therefore, ASBCA cases are a reasonable first stop for practitioners seeking to determine whether the Christian doctrine has been previously applied to a particular clause at issue. In recent cases, the Civilian Board of Contracts Appeals appears to have applied the Christian doctrine only to incorporate a missing disputes clause.
This section discusses the challenges caused by the Christian doctrine. Sections III.A.1 and III.A.2 focus on how, at a micro-level (from contract to contract), each of the Christian doctrine’s two elements can be bewildering and challenging to apply. Section III.B discusses how the Christian doctrine is fundamentally in tension with foundational principles governing the U.S. public procurement system. Finally, Section III.C highlights the harms of the Christian doctrine, both to the government and its contractors.
The following sections explain that the current Christian doctrine has three main shortcomings: first, the standard itself is bewildering and challenging to apply; second, the doctrine sits in direct tension with applicable contract law in the United States; and third, as it plays out in practice, it is entirely possible that the current Christian doctrine does more harm than good.
1. What is mandatory is sometimes an open question
A current Christian doctrine analysis requires two primary inquiries: (1) whether the contract clause at issue is mandatory for the contract at hand, and (2) whether the clause represents a significant or deeply ingrained strand of public procurement policy.
Conceptually, the first part of a Christian doctrine analysis — whether a clause is mandatory for a given contract — appears straightforward and objective. It would be easy to assume dismissively that either a clause clearly applies to, and is mandatory for, a given contract, or it does not. In practice, however, answering even this threshold question is sometimes quite complicated and subjective. For example, for firms contracting with a Military Department (the Army, Air Force, or Navy), no official, comprehensive list of mandatory clauses apply to a given contract when considering the multiple and overlapping FAR supplements that may apply. While a provision and clause matrix for the FAR (but not the FAR supplements) offer some guidance in determining what clauses are mandatory for certain contract types, this FAR matrix is not sufficiently extensive to reference when contracting with a Military Department.
The FAR provision and clause matrix is of limited value for complex contracts because complex contracts may contain aspects or line items that vary in both their pricing structure and in determining whether the supplies or services are deliverable. It is not uncommon for a single government contract to contain contract line items that are both fixed-price and cost-reimbursement, requiring a contractor to provide a combination of noncommercial supplies, commercial supplies, services, and possibly even construction tasks. For such contracts, the FAR provision and clause matrix is of little assistance. Amplifying the challenge of identifying potentially mandatory but possibly omitted clauses is the fact that there is simply no authoritative provision and clause matrix for many of the FAR supplements to identify agency specific mandatory clauses that may be an addition to, or a replacement for, mandatory FAR clauses.
K-Con, Inc. v. Secretary of Army and Bay County v. United States demonstrate the challenges of even determining which clause(s) should apply. In K-Con, application of the Christian doctrine turned on whether the contract for two pre-fabricated and pre-engineered buildings was a commercial supply contract or aconstruction contract. Nearly the entire oral argument at the Federal Circuit was used by the parties to argue how to classify the contract — as a commercial supply or construction contract — since this classification would be dispositive of which clauses were mandatory. In Bay County, the Court of Claims applied the Christian doctrine to incorporate the correct clause governing independently regulated utilities. However, the court’s application of the Christian doctrine came only after the parties faced the significant challenge of determining what utilities-related FAR and DFARS clauses were mandatory in Air Force utilities contracts from decades earlier. As these two cases demonstrate, determining which clauses are mandatory is sometimes difficult.
2. What is significant or deeply ingrained is almost always an open question
The second part of a Christian doctrine analysis — whether the clause represents a significant or deeply ingrained strand of public procurement policy — further increases the bewildering application of the doctrine. Judge Plager of the Court of Appeals for the Federal Circuit criticized the “significant or deeply ingrained” aspect of the Christian doctrine standard as being unnecessarily abstract. Specifically, Judge Plager described the standard as “tied to anything or nothing, and is therefore inherently unpredictable.”
To be fair, certainly some government contract clauses, without question, represent significant and deeply ingrained policy — and some that clearly do not. However, for everything in between, the parties to a government contract are left with uncertainty as to whether a court or board of contract appeals would incorporate a given clause by operation of law pursuant to the Christian doctrine. No court or administrative body has articulated any meaningful standard to determine what is considered a significant or deeply ingrained strand of procurement policy.
Just as there is generally no authoritative list of mandatory clauses required by each FAR supplement, there is also no authoritative list of which mandatory clauses are considered significant or deeply ingrained policy. Performing a Christian doctrine analysis with certainty is an undertaking that ranges somewhere from impractical to impossible as hundreds of FAR and FAR supplement clauses may apply to a given contract.
In addition to the practical drawbacks of the Christian doctrine, the doctrine is also, as a matter of public policy, in direct tension with fundamental principles of contract law in the United States. The Christian doctrine undermines the need for mutual assent (the meeting of the minds) during the formation of contracts, conflates the government’s incompatible roles as both a sovereign and as a contracting party, and is based on a separation of powers rationale not entirely reflective of the U.S. public procurement system.
First, the Christian doctrine undermines the requirement for mutual assent in the formation of contracts. U.S. public procurement law is generally consistent with the legal rules summarized in the Restatement (Second) of Contracts. It is a well-settled principle of contract law that for parties to create a valid contractual relationship, the parties must mutually assent to the same contractual terms. This standard applies equally for contracts between two private parties or between the government and a private party. The Christian doctrine undermines this principle by permitting a court or administrative body to add, alter, or substitute the agreed upon express and material terms of a contract in a manner that results in new rights and obligations to which the parties did not mutually and deliberately agree.
The Christian doctrine also undermines the distinct status and authority of the United States as a sovereign and the United States a contracting party. As the U.S. Supreme Court and lower courts often emphasize, a fundamental principle of U.S. public procurement law is that when the United States steps off its throne as the sovereign and voluntarily enters into contracts with private parties, those contracts generally are governed by the law applicable to contracts between private individuals. The expansive safety net that the Christian doctrine provides the United States as a contracting party is fundamentally inconsistent with the legal principle of treating government contracts similarly to contracts between private parties. This safety net is also unnecessary since there is already a well-developed body of caselaw applicable to private contracts that provides principles and mechanisms for courts to address mistakes in contract formation. If the government’s objective is truly to contract with private parties as equals, the Christian doctrine unnecessarily undercuts that intent since existing contract law is often already adequate to adjust the contractual rights between parties.
Since the original decision in G.L. Christian & Associates, courts have stated that a fundamental purpose of the doctrine is to prevent executive branch officials conducting government contracting from dispensing with procurement policies and requirements properly established by the legislative branch. This separation of powers rationale for the Christian doctrine is somewhat unpersuasive, primarily because the doctrine does not fully account for which branch of government requires the individual mandatory clause in question. For example, a mandatory clause may be implementing a statutory requirement or it may be solely an executive branch regulatory requirement. The separation of powers basis for the Christian doctrine appears to overlook the based on executive branch requirements, not legislative branch enactments.
The original Christian doctrine — that applied to any mandatory clauses, whatever the source — made no attempt to distinguish between legislative branch and executive branch requirements. Similarly, the current Christian doctrine, which applies to mandatory clauses that represent significant or deeply ingrained public procurement policy, does not directly consider whether a clause is based on legislative or executive branch requirements. Therefore, since the doctrine does not require consideration of the branch of government responsible for a mandatory requirement, it cannot be argued convincingly that a primary purpose of the doctrine is to limit executive branch encroachment. If maintaining separation of powers in the U.S. public procurement system was truly a fundamental purpose of the doctrine, the doctrine would more appropriately demand inclusion of any mandatory clause or obligation required by statute (or other valid legislative branch enactment). This shortcoming aside — that the Christian doctrine should differentiate between legislative branch and executive branch contract requirements — the doctrine nonetheless may still provide an essential check on executive power. This is especially evident in circumstances where an executive official may have personal contracts with the government and those contracts do not contain otherwise mandatory clauses.
Finally, the Christian doctrine essentially replaces potential executive branch encroachment on the legislative branch with judicial encroachment. The doctrine, in its current form, allows courts to pick and choose, with no readily assessable standards, what mandatory contract requirements represent significant or deeply ingrained public procurement policy. The judicial branch is possibly the branch of government with the least expertise in deciding which procurement policies are significant and which are not. Unlike the executive agencies that must actually use the goods and services procured, the judicial branch has a less direct stake in successful contract performance. The current Christian doctrine is flawed as a matter of public policy because it allows the courts to subjectively and conclusively reform government contracts, even in situations where the parties to the contract did not agree to the new terms and even when the reformation is not required by statute (i.e., the mandatory clause is based on some non-statutory requirement).
The Christian doctrine is intended to protect the government. However, based on the micro and macro considerations discussed above, it is arguable that the doctrine is more harmful than beneficial. But the doctrine may continue to exist because its harms are difficult to quantify. While the doctrine creates uncertainty and complexity in government contracts, it would be challenging to identify any specific instances or numbers of private firms not willing to do business with the government because of the Christian doctrine alone.
One reason the Christian doctrine may have endured for over fifty-five years is that the benefits the government occasionally receives from the doctrine are tangible and measurable, while the costs associated with the doctrine’s existence are intangible. For example, without the Christian doctrine, the government would have been exposed to measurable breach of contract damages in G.L. Christian & Associates, may have had to pay twice for readily accessible material handling costs in General Engineering, or may have been liable for a contractor claim for increased costs in K-Con. The reduced legal exposure the doctrine sometimes provides is alluring to government officials. However, the Christian doctrine’s protections possibly come with hidden costs that exceed any benefit.
Unwelcome consequences occur when the government is a contracting partner that can or does unilaterally change its contracts or bestow upon itself special rights and privileges. Such one-sided and unpredictable conduct may subject the government to higher prices, reduce the number of private firms willing to do business with the government, or both. As explained in the United States v. Winstar plurality opinion, when courts expand the ability of the United States to abrogate its contracts, it “undermin[es] the Government’s credibility at the bargaining table and increase[es] the cost of its engagements.” Presumably, the reaction of government contractors to the uncertainty associated with government contracts is similar regardless of which branch of government is introducing the uncertainty. With the Christian doctrine, the judicial branch happens to be the risk-increasing branch, but there is no shortage of other examples where the other branches also add unnecessary unpredictability to government contracts.
The harms associated with unnecessary uncertainty in government contracts and the conceivable reduction in the number of private firms willing to do business with the government pose a substantial risk to the United States. If realized, the risk related to the Christian doctrine — that the government’s ability to obtain the best or most advanced goods and services could be limited — far outweighs the financial risk that may occur when the occasional government contract has a missing or incorrect clause. For example, the GAO has identified the complexity and uncertainty associated with Department of Defense (DoD) procurements as a contributing reason private firms may avoid doing business with the DoD.
Contracting with the federal government already contains complexity and risks exceeding those found in typical private-sector contracts. Forcing potential government contractors to face unexpected reformation of their contracts only exacerbates this problem. While some argue that the Christian doctrine is of limited effect since it is rarely applied and affects only a minuscule percentage of the contracts the United States enters into each year, this unconcerned point of view may be shortsighted.
The Federal Circuit’s recent K-Con decision is an example of the executive branch’s shortsightedness. In 2013, the Army contracted with K-Con, Inc. for two pre-engineered metal buildings. The Army used the General Services Administration’s eBuy system and a Standard Form 1449, Solicitation/ Contract/ Order for Commercial Items. The contracts neither contained any requirement that K-Con provide performance and payment bonds, nor they include FAR clause 52.228-15 (Performance and Payment Bonds — Construction), which is a mandatory clause for construction contracts. Despite the contracts not expressly requiring performance bonds for construction, the Army forced K-Con to provide performance bonds under the theory that the bond requirements were required (and thus incorporated) by law. K-Con eventually submitted a contractor claim related to its increased costs incurred while the parties resolved the issue of the performance bonds. The Federal Circuit ruled in favor of the Army, finding that the bond requirements were incorporated by operation of law.
The Army’s success before the Federal Circuit, denying K-Con’s $116,336 claim based on an application of the Christian doctrine, may have been a tactical win for the Army. However, it was more likely a strategic loss for the government’s overall ability to obtain goods and services at market prices from small businesses in the future. Forcing K-Con, a small business, to litigate contracts with a total value of less than $800,000 at the Federal Circuit may have a lasting effect, either on the government’s market access or the prices the government will pay. The government demonstrated that it is willing to have its contracts, of nearly any size, reformed by operation of law, even when a missing clause was omitted due to the government’s own error.
Private firms receive many benefits when they contract with the government. However, so long as decisions such as K-Con and industry publications continue to highlight the Christian doctrine as a potential risk when doing business with the government, it remains in the government’s interest to eliminate or simplify the doctrine. As long as the barriers to entry to doing business with the government remain high — and make no mistake that, when combined, all of the perplexing features of the U.S. public procurement system pose extremely high barriers — the United States may not have access to the innovative ideas and technologies increasingly developed by smaller start-ups and funded venture capitalists.
As the previous sections argue, the Christian doctrine is an undesirable and unnecessary feature of the U.S. federal procurement system that results in needless complexity, uncertainty, and barriers to entry. This section proposes three potential approaches to removing or reducing the harms posed by the doctrine. In principle, the three proposed approaches are to eliminate the doctrine, to codify the doctrine and make its application more objective, or to limit the doctrine’s application to only the highest-value or highest-risk non-commercial contracts. Each approach will require either legislation or new regulations with the force and effect of law. The approach recommended by this paper is a hybrid of codifying the doctrine for objective application, while simultaneously limiting its application to only the highest-value contracts where parties are likely to be sophisticated and have sufficient resources.
On one end of the spectrum, Congress could remove uncertainty related to the Christian doctrine by enacting legislation eliminating the doctrine entirely. A proposed approach could be drafted in plain language:
The government has a need to attract new entrants into the federal procurement market and a desire to promote acquisition policies more closely resembling those of the commercial marketplace. In furtherance of these goals, contract clauses and/ or terms not expressly included or referenced in a government contract shall not be read into that contract by operation of law.
This approach simply abolishes the judicially created Christian doctrine. The obvious benefit of this approach is that it outright eliminates any uncertainty and unpredictability of the Christian doctrine. The result would be that the terms of any given government contract are those terms expressly included in the contract, and nothing else. Parties to a government contract, including the government, would be able to operate in line with commercial entities and would have more accurate information regarding their rights and obligations pursuant to a given contract. Knowing that there is no safety net in the case of drafting errors, government officials presumably would be incentivized to ensure government contracts are drafted correctly and include all clauses the government believes are required or necessary. The government would bear the risk of any omitted clauses. Firms contracting with the government would also have greater incentive to review their potential contracts with exacting detail, as well as to seek clarification regarding any clauses that appear to be missing or improperly included.
Outright elimination of the Christian doctrine, however, has some significant drawbacks. The first potential downside is that this approach does not necessarily provide a check and balance on executive branch officials who may intentionally ignore or omit a contract clause, otherwise required by statute. This downside is not compelling, though, because numerous other mechanisms are available for the legislative branch to check the executive branch that do not require an innocent third party to bear the burden of executive branch wrongdoing. For example, the Anti-Deficiency Act (ADA) provides a model for a legislative check on the executive branch. Through the ADA, Congress appropriately targeted the statute’s enforcement mechanisms on the executive branch agency and individual official making the unauthorized expenditure, rather than the government contractor receiving the unauthorized appropriation. An optional enforcement mechanism, modeled after the ADA, could state:
For contracts over $[TBD] million, where an agency omits a clause required by statute, the agency head shall report to Congress, through the Comptroller General, all relevant facts and a statement of actions taken. Agency officials intentionally omitting clauses and/ or terms required by law are subject to administrative and criminal penalties, as described in XX U.S.C. § XXXX.
The second potential downside to outright elimination of the doctrine is that the risks associated with omitted clauses can be substantial and unacceptable for the largest and most complex contracts, such as national infrastructure projects and the most sophisticated DoD weapons systems. Other than adding additional layers of contract review, which adds to lengthy procurement lead times (that are themselves a barrier to doing business with the government), this risk is difficult to mitigate and appears to be the type of risk the Christian doctrine was developed to address initially.
As a practical matter, the option to eliminate the Christian doctrine seems unlikely since there is no obvious political benefit because it is very hard to quantify any direct harm that the Christian doctrine causes the government. Additionally, any government contract with an inadvertently omitted clause that resulted in a tangible loss to the government would be an easy target for public criticism. Thus, from a political perspective, this approach of eliminating the doctrine is possibly unviable.
On the other end of the spectrum, Congress could enact legislation, or the executive branch could engage in rulemaking, to remove the subjective prong of the Christian doctrine that was added by the Federal Circuit in General Engineering. This approach would, in essence, return the Christian doctrine to its simpler objective form as originally expressed in G.L. Christian & Associates The “reformed” doctrine would apply once again to all mandatory clauses, without regard to how significant or ingrained they are.
The following language would retain the Christian doctrine, but eliminate its current subjectivity:
All clauses required by [statute] or [regulation] shall be read into contracts with the government as a matter of law as though the clauses were continuously part of the contract from inception. This requirement is intended to minimize uncertainty and subjectivity in interpreting government contracts and should be implemented in furtherance of that goal. Additionally, any terms or clauses that conflict with these mandatory/ required clauses shall be stricken or replaced by operation of law as necessary to reduce or eliminate any conflict between mandatory clauses and non-mandatory clauses or terms. When a contract fails to include required clause(s), the agency has the authority to unilaterally modify the contract to include the omitted clause(s). The agency should do so as soon as practicable after the omission is identified by either party. The agency shall pay the contractor any additional monies the contractor may be entitled to, based on the modification, as may be appropriate and equitable under the circumstances.
This straightforward approach is narrower than the complete abolishment of the doctrine and only eliminates the subjective prong of the current Christian doctrine. In analyzing whether a particular clause must be deemed incorporated as a matter of law, the parties would no longer be required to predict whether a court or administrative body would deem the clause “significant or deeply ingrained.” The parties could focus on the more objective question of whether the clause is required by law or regulation. This approach may have a more favorable chance of enactment, since it would return some small amount of power over government contracts to the legislative and executive branches. Courts would no longer be empowered to determine subjectively that a clause important enough to have been made mandatory by law or that a regulation is otherwise not significant or worthy enough of incorporation by operation of law.
This approach also has the benefit of codifying the doctrine and placing industry on clearer notice regarding how the doctrine will be applied. Moreover, this approach could be used to address conclusively still-open questions, such as whether the doctrine applies to subcontracts, solicitation provisions, and non-FAR based agreements. Given how infrequently Christian doctrine cases rise to the Federal Circuit, waiting for the courts to address these important still-open issues seems imprudent. With the goal of eliminating uncertainty and enhancing predictability, whether the doctrine does or does not apply in these circumstances is less important than ensuring a clearer statement and understanding of applicability. The current uncertainty regarding the Christian doctrine’s application to other transaction agreements, subcontracts, and solicitation provisions seems inexcusable for a well-developed procurement system.
Despite the benefit of eliminating some subjectivity from the interpretation of government contracts, this proposed approach to incorporate all mandatory clauses regardless of significance maintains one of the primary drawbacks of the doctrine. Even with the overall simplicity of this approach, it would remain nearly impossible for all but the most sophisticated government contractors to determine conclusively what clauses are mandatory for more complex government contracts. A second drawback is that this approach could result in the expenditure of judicial resources on disputes about relatively insignificant clauses. That said, given the sizable cost of government contracts litigation, feasible disputes regarding the incorporation of inconsequential clauses should be infrequent.
After considering two extremes—eliminating the Christian doctrine or applying it to all mandatory clauses to eliminate subjectivity — a hybrid or middle-ground approach seems most appropriate. This third and preferred course of action is to eliminate the Christian doctrine for smaller contracts and commercial item contracts, yet maintain the doctrine (in as close to its current form as practicable) for larger contracts. This approach would eliminate the doctrine as a barrier to entry for small and commercial contracts, while maintaining the safeguards the doctrine provides for larger contracts.
This preferred approach may be accomplished as follows:
(1) The government has a need to attract new entrants into the federal procurement market and a desire to promote acquisition policies more closely resembling those of the commercial marketplace.
(2) Therefore, for all contracts below $XX million, and contracts for commercial items/ services of any value, no doctrine or principle of contract interpretation shall apply that causes contract clauses to be read into that contract by operation of law.
(3) For contracts where an agency omits a clause required by statute, and that omission has adversely affected the government, the agency shall report to Congress, through the Comptroller General, all relevant facts and a statement of actions taken.
(4) For contracts over $XX million that are not for commercial items or services, all clauses required by statute or regulation shall be read into these contracts as a matter of law, as though the clauses had been continuously part of the contract from inception. When a contract fails to include required clauses, an agency has the authority to unilaterally modify the contract to include the omitted clauses. The agency should do this as soon as practicable after the omission is identified by either party. The agency shall pay the contractor any additional monies the contractor may be entitled to, based on the modification, as may be appropriate and equitable under the circumstances.
This approach would eliminate the Christian doctrine as a barrier to entry for small and commercial contracts, while maintaining the safeguards that the doctrine is thought to provide the government for larger contracts. So long as the threshold is fairly high, the parties to these contracts are expected to be sophisticated actors with both the expertise and resources necessary to review thoroughly solicitations and draft contracts for potentially absent or incorrect clauses. This threshold-based approach assumes some risk associated with missing or incorrect clauses for contracts below the chosen threshold, but this risk should be tolerable given the potential benefit of making innovative suppliers of goods and services more accessible for the government.
Eliminating the doctrine for smaller and commercial contracts, while maintaining but simplifying it for the largest contracts, is the approach most likely to be accepted by all stakeholders. Potential contractors would have one less enigmatic aspect of the U.S. public procurement system to worry about for most contracts. The executive branch would retain the benefits and safeguards of the Christian doctrine for its largest contracts and, simultaneously, be able to reduce how complex and intimidating doing business with the government can be for its not-so-large contracts. The legislative branch would be assured that for the government’s largest contracts, all legislative enactments are given credence by the courts, not just the requirements the courts find “significant or deeply ingrained,” as is the case under the current Christian doctrine. Finally, the courts would only have to expend judicial resources on significant disputes and would have clear guidance to apply when those cases arise.
This paper critically analyzed the Christian doctrine as well as offered potential improvements to the status quo. As discussed, the current state of the Christian doctrine adds unnecessary uncertainty and complexity to government contracts. While many benefits of contracting with the government may exist, these benefits probably outweigh any harm associated with the Christian doctrine in most cases. Nonetheless, eliminating the Christian doctrine for smaller and commercial-type government contracts should help reduce the barriers to entry into government contracting. Limiting or reforming the Christian doctrine is one of several potential changes that could make government contracts more inviting to private industry, thus increasing the government’s access to agile and innovative companies.
Just because the Christian doctrine has been a feature of U.S. public procurement for decades does not mean it should continue, unchallenged, in its current form. The U.S. federal government is the largest buyer of goods and services in the world. In light of this fact, entrenched aspects of the procurement system that increase uncertainty and complexity, without corresponding increases to value obtained, are unacceptable. Our system can do better.
