Imagine an incredulous Contractor asking, “Show me in the Contract where it says I’m supposed to do X?” The Government Contracting Officer smugly answers, “even though the Contract doesn’t say so, you must do it anyway.” Is that even possible, when, how? Yes, it’s possible.
The Government OR the Contractor can hold each other to contract clauses that are neither expressly nor impliedly included in the Contract when:
- Such clauses express a significant or deeply ingrained part of public procurement policy; or
- When the party seeking to enforce such clauses is not doing it for its own benefit.
This is known as the Christian Doctrine, named for the case of G.L. Christian & Assoc. v. U.S., 312 F.2d 418 (U.S. Court of Claims, 1963).
Unfortunately, the Christian Doctrine only works on contract clauses and only in limited circumstances. It doesn’t work on statutes. Even when the Statute itself empowered the Government to enter into Contracts, because the terms of the Statute were not expressly or impliedly part of the Contract, the Contractor had no remedy for the Government’s failure to pay after the Contractor performed. (See, James M. Fogg Farms, Inc., et al. v. U.S., Court of Federal Claims, Case No. 17-188C (September 27, 2017)).
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Jonathan J. Straw
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