The Christian Doctrine:
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 notice vendors 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.
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 Christiandoctrine, 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.
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 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 Christiandoctrine, doing so is not necessarily a bar to the government’s ability to enforce or recover under an aspect of the contract.
The 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). Three hospitals contracted with a health plan that had a government contract to provide health benefits to federal employees. The Department of Labor (DOL) determined that the equal opportunity requirements imposed on government contractors were applicable whether they appeared in the contract or not and that those obligations should flow-down to subcontractors irrespective of whether the requirement appeared in the subcontract agreement. The hospitals appealed, but the court agreed with the DOL. While acknowledging the private nature of the relationship between primes and subs, it reasoned that the subcontractor should be bound because a subcontractor performs work for the government and the regulation was a mandatory flow-down.
UPMC Braddock can be distinguished in a number of ways and as a result makes its applicability in other cases difficult. Nevertheless, subcontracting parties, particularly subcontractors, should be aware that the possibility exists. Subcontractors should take care to ensure they are conscious of all of the prime contract’s mandatory flow-downs, even if the prime has not included them in the subcontract. They should also be mindful – to the extent possible – to have a working knowledge of what courts in the applicable jurisdiction have incorporated into prime contracts by way of the Christian doctrine.