What Is the Christian Doctrine and Why Should You Care?
The Christian doctrine provides that a mandatory statute or regulation that expresses a significant or deeply ingrained strand of public procurement policy shall be read into a federal contract by operation of law, even if the clause is not in the contract. G. L. Christian & Associates v. United States, 312 F.2d 418 (Ct. Cl. 1963). The doctrine is an exception to the general rule that the government must put vendors on notice of contract requirements, whether expressly or through incorporation by reference. It also is an exception to standard commercial contracting practices and contract interpretation principles. The rationale for the doctrine is that procurement policies set by higher authority cannot be avoided or evaded (deliberately or negligently) by lower government officials.
The Federal Circuit’s recent decision in K-Con, Inc. v. Secretary of the Army, No. 17-2254, 2018 WL 5780251 (Fed. Cir. Nov. 5, 2018), is a reminder to government contractors that the Christian doctrine is alive and well. In K-Con, relying on the Christian doctrine, the Federal Circuit read bonding requirements into construction contracts even though no such requirements were included in the contracts. K-Con argued the contracts were commercial item contracts, not construction contracts; therefore, the bonding requirements for construction contracts did not apply. The Federal Circuit disagreed. The court found the contracts and underlying solicitations contained provisions that were patently ambiguous as to whether the contracts were for construction or commercial items. Because K-Con never sought clarification of the patent ambiguity prior to award, the court held that K-Con was barred from arguing that the contracts were not construction contracts.
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