Applicability of “Christian Doctrine” to the Final Rule on Detection and Avoidance of Counterfeit Electronic Parts (DFARS Case 2012-D055)

During a discussion with other defense contractor representatives, a question arose about whether the “Christian Doctrine” will apply Section 818 DFARS counterfeit electronic parts clauses to subcontracts and, if so, at what levels of the supply chain.

“Christian Doctrine” is a shorthand expression of a legal rule that provides that contract clauses required by regulation to be in government contracts are deemed to be included and applicable even if inadvertently omitted.

Richard N. Kuyath, 3M Office of General Counsel, provided background information on the “Christian Doctrine” and his thoughts about whether or not it will apply to the final rule for DFARS Case 2012-D055 …

The term “Christian Doctrine” comes from the name of the case where it originated. G.L. Christian & Assocs. v. United States, 160 Ct. Cl. 1, 312 F.2d 418, reh’g denied, 160 Ct. Cl. 58, 320 F.2d 345, cert. denied, 375 U.S. 954 (1963). It is not a type of religious doctrine.

In this case the parties intentionally did not include the Termination for Convenience of the Government clause in a Government on contract for construction work. The Government later terminated the contract for its convenience. The contractor brought an action for breach of contract seeking damages, arguing the Government had no right under the contract to terminate it for its convenience. The Court of Claims held that the Termination for Convenience clause was read into the contract by operation of law. This was because the T/C clause is a “significant or deeply ingrained strand of public procurement policy.” Therefore, the Government had the right to terminate the contract for its convenience even though the Contracting Officer and the Contractor mutually agreed to not include it. This meant the contractor was only entitled to a termination settlement under the Termination for Convenience clause, which precluded recovery of anticipated (lost) profit on the terminated work. The contractor would have recovered its lost profits if it had been able to sue for breach of contract.

Under the Christian doctrine a court or administrative body may incorporate into a Government contract by operation of law certain missing FAR, DFARS and other FAR Supplement clauses required by statute or regulation to be included in the contract. Not every FAR or DFARS that is supposed to be included in a Government contract will be read into the contract by operation of law under the Christian doctrine. In general, the FAR, DFARS or other FAR Supplement clause must reflect a “significant or deeply ingrained strand of public procurement policy.”

The Christian doctrine can apply to a missing FAR, DFARS or other FAR Supplement clause that is required to be included in a Government contract when the clause is either accidentally or even intentionally left out of the contract.

Unlike standard rules of contract interpretation, the Christian doctrine does not consider the intention of the parties at the time of contracting. In the G.L. Christian case, the Court of Claims stated that the purpose of the Christian doctrine is to ensure that obligatory Congressional enactments govern Government contracts and that they cannot be overridden by officials in the Executive Branch.

The Christian doctrine has been inconsistently applied by the courts and boards of contract appeals.

According to one legal commentator, the Christian doctrine remains one of the least understood principles of federal procurement law, and courts, administrative bodies, and others who work in the field of Government contracts struggle to determine the circumstances under which the Christian doctrine will be applied, as well as the scope of that application. “THE CHRISTIAN DOCTRINE AT 50: UNRAVELING THE FEDERAL PROCUREMENT SYSTEM’S GORDIAN KNOT,” by Brian A. Darst, Briefing Papers, October 2013.

Therefore, no one can be certain if a particular FAR, DFARS or other FAR Supplement clause will be read into a Government contract under the Christian doctrine.

Until 2013, there had never been a case holding that the Christian doctrine applies to Government subcontracts. Many legal commentators believed it did not apply to subcontracts. However, in UPMC Braddock v. Harris, No. 1:09-cv-01210-PLF (D.D.C. Mar. 30, 2013). the D.C. District Court upheld a ruling by the U.S. Department of Labor’s Administrative Review Board (ARB) that three Pennsylvania hospitals were Government subcontractors subject to the Office of Federal Contract Compliance Programs’ jurisdiction. This case held the Christian doctrine applied to subcontracts with respect to clauses like Equal Employment Opportunity and Affirmative Action because they were a significant or deeply ingrained strand of public procurement policy and the Department of Labor implementing regulations said the requirements in such clauses applied to subcontracts even if the clauses were not included in the subcontract.

Many legal commentators believe this was an incorrect decision. Others believe that, despite the holding in this case, in the future theChristian doctrine will be rarely applied to subcontracts and only in special cases. It is all speculation.

Whether the Christian doctrine will apply Section 818 DFARS counterfeit electronic parts clauses to subcontracts and, if so, at what levels of the supply chain, is unknown.

In theory the Christian doctrine could apply the Section 818 counterfeit electronic parts clauses to subcontracts but I believe it is unlikely. Only one case to date has held the Christian doctrine applies to subcontracts and special circumstances were involved in that case. In addition, that case is being appealed so it may be overturned. In addition, the interpretation of Government subcontracts is generally governed by state law – not federal law. This makes it even more unlikely that a court will hold that Section 818 counterfeit electronic parts requirements apply to subcontracts under the Christian doctrine.

The Christian doctrine is more unlikely to apply to subcontracts the deeper you get in the descending levels of the supply chain.

Here is an article that discusses the application of the Christian doctrine to subcontracts..

http://ehoganlovells.com/rv/ff0010f08e1f6bf8d146ed8b9e45a14d78f25da1

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