What Is the Christian Doctrine and Why Should You Care?

Merle M. DeLancey Jr.

The Christian Doctrine

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.

The court then addressed whether bond requirements are read into construction contracts regardless of whether the requirements are expressly included among the contract’s terms. Applying the Christian doctrine, the Federal Circuit found that the Miller Act and FAR 28.102-1 require a contractor to furnish performance and payment bonds for any construction contract exceeding $150,000. Thus, the court found the bonding requirements to be mandatory and that they reflect a longstanding strand of public procurement policy dating back to the 19th Century and subsequently strengthened by Congress and repeatedly addressed by regulators.

Why You Should Care about the Christian Doctrine

First, the Christian doctrine, as applied in K-Con, is a reminder that, just because you do not see certain clauses that you normally would expect to see in a contract, does not mean such clauses are not applicable. A contractor should ask the Contracting Officer about the missing clauses and, even then, the contractor may need to assume such clauses, even though not in the contract, still apply. This is because, regardless of whether the parties intentionally or deliberately agreed to exclude a certain clause from a contract, if the clause is mandatory, courts and boards have read such clauses into a contract by operation of law.

Second, while there is no defined list of clauses covered by the Christian doctrine, courts and boards have held that the following clauses meet the significant or deeply ingrained strand of public procurement policy standard: Disputes, Termination, Changes, Payment, Equal Opportunity, Affirmative Action, and clauses implementing provisions of the Buy America Act, Truth in Negotiations Act, Miller Act, and Davis-Bacon Act.