FAR Clauses Are In The Contract Whether You Know It Or Not: Federal Circuit Affirms Continuing Vitality Of Christian Doctrine

Since 1963, the federal government has relied on a doctrine first advanced in G. L. Christian & Assocs. v. United States to read certain terms and provisions into its contracts despite the lack of any express reference thereto. This "Christian doctrine" has been used to remedy errors and omissions by contracting officials who fail to include provisions satisfying two criteria: First, the provision must be mandatory, and second, it must reflect a "significant or deeply ingrained strand of public procurement policy." Although this doctrine has historically had the effect of imposing substantial costs and obligations on unsuspecting contractors after the fact, the government's reliance on this doctrine has waned in recent years. However, a recent decision from the U.S. Court of Appeals for the Federal Circuit reaffirmed the doctrine's relevance, demonstrating the need for contractors to continue evaluating the completeness of their contracts.

K-Con, Inc. v. Secretary of the Army involved two contracts for the construction of prefabricated buildings to be installed at an Army facility in Massachusetts. The Army used commercial item procedures to solicit these buildings, omitting provisions of the Federal Acquisition Regulation (FAR) required for construction contracts, including FAR 52.228-15, Performance and Payment Bonds—Construction. But after awarding a contract to K-Con, the Army nonetheless insisted that K-Con obtain the bonds required under that clause, a process that delayed performance for nearly two years, resulting in significant cost and delay to K-Con. In response to claims filed by K-Con seeking compensation for those costs and delays, the government took the position that the contracts were for construction, and the bonding requirements were therefore mandatory, a position sustained by the Armed Services Board of Contract Appeals.

On appeal to the U.S. Court of Appeals for the Federal Circuit, K-Con advanced two arguments: first, that...