The Christian Doctrine has little to do with Christianity and much to do with lawyers, judges, and government contracting. You’ll need to be careful with your internet search terms, lest you wind up with very unexpected results! Here’s a link to a Wikipedia entry to get you started.

The Doctrine started with the case of G.L. Christian and Associates v. U.S. in 1963. The litigation originated when the Army terminated Christian’s contract, and attempted to apply the rules associated with then-standard Termination for Convenience clause to the termination settlement. For its part, Christian argued that the Army couldn’t take that approach because it had failed to include the T4C clause in Christian’s contract. The Army prevailed, with the court ruling that the contract should be read to include the T4C clause because it should have been part of the contract if the drafters had followed applicable regulations.

Though the concept has evolved over time, the Christian Doctrine basically states that a government contract will be interpreted to include certain clauses, even if those clauses have been (intentionally or unintentionally) omitted. As of 1993, the Doctrine was held to apply only to “mandatory contract clauses which express a significant or deeply-ingrained strand of public procurement policy,” and not to every clause.

The trick is to know which clauses will be read into your contract, and which ones will not. Courts have not always been consistent in their application of the Christian Doctrine to disputes between the Federal government and its contractors. Some cases have been decided via strict adherence to the Christian Doctrine and others apparently have been decided in spite of the Christian Doctrine. At this point, it’s difficult to assert with any degree of certainty whether any given FAR contract clause will be found to be read into a contract when it’s missing.

We want to discuss two recent cases involving the Christian Doctrine. One comes from the Armed Services Board of Contract Appeals (ASBCA) and the other from the U.S. Court of Federal Claims (CoFC).

Let’s start with the ASBCA case: Space Gateway Support LLC v. United States. The first thing you’ll notice, should you click the link, is that the decision is massive—weighing-in at more than 230 pages. “It must be a very complicated case,” you may well think … before you notice that almost all of the decision has very little to do with the actual case at hand. Instead, Judge Hartman provided a very detailed history lesson, with the apparent intention of supporting his finding that SGS was not entitled to profit or fee on its acquisition of equipment in its cost-reimbursement J-BOSC (“Joint Base Operations Support Services”) contract at Cape Canaveral Spaceport. Judge Hartman found that, though the contractor had been directed to acquire the equipment for the benefit of the government (and title in the equipment passed to the government), it should not be entitled to any fee/profit on the costs of the equipment.

SGS argued that it should be permitted a profit on items it acquired on behalf of the Government, because (a) the contract was not a facilities contract (which would have prohibited a profit), and (b) “it lacked notice it was being furnished ‘facilities’ by NASA because the CO did not include in its contract (which was ‘other than a facilities contract') unspecified portions of standard clauses for facilities contracts and therefore its contract should not include a prohibition against profit or fee on facilities acquired in order to conform with its belief it was not receiving ‘facilities.’”

After some 200-plus pages of the history of government contracts, Judge Hartman concluded that—

… even if we did not hold FAR 45.302-3 to be controlling on NASA's COs and the J-BOSC, we would conclude it applied to SGS's contract here because it presents a significant or deeply ingrained strand of public procurement policy. As we discussed above, we believe that well-established contract law doctrines permit us to conclude a party, such as SGS, who willingly, and without protest, enters into a government contract with imputed knowledge of the government's interpretation--as prohibiting the payment of profit or fee on cost of facilities acquired for the account of the government and use by the contractor--is bound by such interpretation and cannot subsequently claim that it thought something else was meant. … Alternatively, however, we conclude that the prohibition on profit or fee set forth in FAR 45.302-3(c) is incorporated in SGS's contract by the Christian doctrine set forth by the Court of Claims nearly 50 years ago. We recognize the so-called Christian doctrine is not tied to the intent of the contracting parties, is not invoked frequently by tribunals … and is thought by some to provide less certainty than standard contract doctrines because what comprises a ‘significant or deeply ingrained strand of public procurement policy’ may not be readily predictable. … We rely upon the doctrine here as an alternative ruling because the doctrine remains binding precedent … and this is one of those rare instances of a significant procurement policy spanning 95 years of our nation's history.

[Emphasis added.]

In a most unusual step, the two concurring Judges issued a separate opinion. It was once sentence long. In fact, the concurring opinion consisted of just four words. Perhaps the two Judges felt Judge Hartman had written more than sufficient verbiage in his opinion?

Looking at the next case, we turn to the matter of Bay County, Florida v. United States. This opinion by Judge Lettow at the CoFC was 11 pages long. Forget the facts of the case; here’s what Judge Lettow ruled—

The government argues that Bay County waived its potential status as an independent regulatory body by [inclusion of] FAR § 54.241-8 in the Sewage Contract — ignoring the limitation of Subsection (a) on application, viz., “[t]his clause applies to the extent that services furnished hereunder are not subject to regulation by a regulatory body.” … the government contends that the only way to give meaning to the Sewage Contract is to treat Bay County as a non-independent regulatory body. …

When a contract subject to the FAR incorporates improper terms of the FAR, the correct provisions of the FAR control. … ‘Under the so called Christian doctrine, a mandatory contract clause that expresses a significant or deeply ingrained strand of procurement policy is considered to be included in a contract by operation of law.’ … In S.J. Amoroso, as here, an improper clause was substituted for a proper clause. … As S.J. Amoroso held, ‘[a]pplication of the Christian doctrine turns not on whether the clause was intentionally or inadvertently omitted, but on whether procurement policies are being ‘avoided or evaded (deliberately or negligently) by lesser officials.’’ … (citing G.L. Christian & Assocs., 320 F.2d at 351). The proper clause was consequently given effect. …

In this instance, inclusion of the clause prescribed for unregulated utilities constitutes such an impermissible deviation. … The text of the FAR is unambiguous in its requirement for inclusion of the proper change of rate clause … The prescribed condition for inclusion of FAR § 52.241-7 is that the utility services ‘are subject to a regulatory body.’ … As established supra, Bay County qualifies as an independent regulatory body, and as such, FAR § 52.241-7 is a required term of the utility contract. Correspondingly, FAR § 52.241-8 is inappropriate. Although deviations may be authorized by the agency head for individual contract actions, such a deviation must be documented and justified in the contract file. … No such documentation or justification is present here.

Accordingly, the Christian doctrine applies and binds the contracting parties to the mandatory contractual term. … ‘Such regulations are law, binding on the contract parties’ when otherwise applicable to the contract, Dravo Corp. v. United States … and ‘need not be physically incorporated into the contract,’ First Nat’l Bank of Louisa, Ky. v. United States …. The court determines as a matter of law that the clause pertaining to independently regulated utilities, FAR § 52.241-7, is incorporated into the contract in place of the improper clause, FAR § 52.241-8, which is physically present.

[Emphasis added.]

So here are two recent cases that use the Christian Doctrine as support for their rulings. In one case, the Judge delved into the arcana of government contracting history to support the finding that the contractor was not entitled to make a profit on items it acquired on behalf of its customer, because the Christian Doctrine resolved any contract language ambiguities in favor of the historical approach to such acquisitions. In the other case, the Judge used the Christian Doctrine to substitute the correct contract clause for an inapposite clause, such that the contractor was entitled to recover its utility rates charged to an Air Force base.

The Christian Doctrine is frequently used in debates regarding what contracts “mean” and what they require of the parties. In point of fact, the Doctrine is inconsistently applied and we assert it’s unwise to rely on it when trying to parse contract language. A much better approach, we believe, is to take pains to fully understand what the contract language means—including discussing seeming ambiguities before execution—so that disputes are avoided.

As we’ve opined before, if you don’t understand your contract, you probably shouldn’t be contracting with the Federal government.