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)).
Roads& Bridges | Confusing Waters
CONFUSING WATERS | A Supreme Court ruling leaves room for ambiguity
What happens when there may be a “significant nexus” between “adjacent” and/or […]
Roads & Bridges | Authority Defined
AUTHORITY DEFINED | The Law of Agency is Important to Understand
For any project, this Russian proverb is helpful: Doveryay, no proveryay – […]
Jurisdiction is Power
Not bad power, but the ability of a decision-maker (e.g., court) to decide which side is right (or which is more correct). […]
Roads & Bridges | Defining Labor
DEFINING LABOR | How the Miller Act continues to shape the industry
In the late 1700s, risks of nonpayment caused a shortage of […]
Roads & Bridges | Mediation Melee
MEDIATION MELEE| An arbitration case can be costly
Arbitration can be a bridge over troubled waters. In this crossing, the parties argued over […]
Roads & Bridges | Written Notice
WRITTEN NOTICE | Beware that strict compliance of the contract might be required.
When an owner replaced a contractor for significant safety violations, […]
Roads & Bridges | Mommie Dearest
MOMMY DEAREST | The story of an ESA without a MOM
Nobody enters this world, or a contract, without a mother: There can […]
IIJA | Does Closing a “Giant Loophole” Cost Contractors?
A recent article published by Roads and Bridges magazine reports that the Office of Management and Budget is working to broaden the scope […]
Roads & Bridges | Buy American Plan Gets an Update
BUY AMERICAN PLAN GETS AN UPDATE
The Office of Management and Budget is developing standards to replace the current Buy […]
