Jump to content

Christian Doctrine & Procurement Policy


Jonfucius

Recommended Posts

Greetings,

I'm working on a training presentation for my coworkers, and my topic is the Christian Doctrine. As later Court of Federal Claims cases have ruled (such as General Engineering & Machine Works v. Sean C. O’Keefe), the Christian Doctrine applies only to "mandatory contract clauses which express a significant or deeply-ingrained strand of public procurement policy". The original G. L. Christian & Associates v. United States court explicitly mentioned the termination clause(s) in its decision, but I've run out of sources to research. Would any of the esteemed WIFCON forum members have other examples of "deeply-ingrained strands of public procurement policy?"

Thank you!

Link to comment
Share on other sites

Something to remember for your training -- the Christian doctrine only applies when it is applied by a court or board -- a contracting officer cannot use the Christian doctrine to unilaterally modify a contract to cover his or her error in forming the contract.

Link to comment
Share on other sites

Jon, if you get a chance, try looking up omitted clauses that were added "by operation of law", without reference to the Christian Doctrine. I don't know if there is case law on this.

However, I remember a HQ US Army Corps of Engineers Office of Counsel directive in 1989 or 1990 to unilaterally added the Prompt Payment clauses and updated Progress Payments clauses that implemented the Prompt Payment Act Amendments of 1988 to all contracts previously awarded after March 31, 1989 (or 1990?) as specified in the law. [Edit per reminder by Vern, below in post #13: We issued admin mods to add the Prompt Payment clause and the updated Payments clause "by operation of law", citing the appropriate authority, which would have been the Prompt Payment Act Amendment of 1988 and/or the Fed Register notice of final action to implement the Law - memory fails me as to the specific authority cited in the Mods.]

As I recall, the directive made no mention of the CD. Construction contractors were unhappy but we didn't get any claims. *

[Edit: *Their rub concerned the provisions, which no longer allowed them to physically hold retainage from their subs from progress payments received from the government. Construction contractors had traditionally used retainage from their subs to finance their contracts. Under the amended PPA, the contractor must identify any retain age or other withholding from reported progress. The government must deduct and hold any such retainage or other withholdings. Primes were also now required to pay their subs every penny received from subs share of progress payments to their subs within seven days of receipt of progress payments. This admin mod theoretically had a huge impact on cash flow for primes and their subs. ]

Link to comment
Share on other sites

The Christian Doctrine is a legal doctrine.

Here's the definition of legal doctrine from wikipedia--

A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows for it to be equally applied to like cases. When enough judges make use of the process soon enough it becomes established as the de facto method of deciding like situations.

No, I have no citation to prove that a contracting officer cannot use the Christian doctrine to unilaterally modify a contract to cover his or her error in forming the contract. The link below is to a CBCS decision where the agency tried to invoke the Christian Doctrine but the board disagreed.

http://www.cbca.gsa.gov/2007app/HYATT_12-21-10_CBCA%201495__W._G._YATES_AND_SONS_CONSTRUCTION_COMPANY.pdf

Link to comment
Share on other sites

The Christian Doctrine is a legal doctrine.

Here's the definition of legal doctrine from wikipedia--

A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows for it to be equally applied to like cases. When enough judges make use of the process soon enough it becomes established as the de facto method of deciding like situations.

No, I have no citation to prove that a contracting officer cannot use the Christian doctrine to unilaterally modify a contract to cover his or her error in forming the contract. The link below is to a CBCS decision where the agency tried to invoke the Christian Doctrine but the board disagreed.

http://www.cbca.gsa.gov/2007app/HYATT_12-21-10_CBCA%201495__W._G._YATES_AND_SONS_CONSTRUCTION_COMPANY.pdf

ji, this was a case where the KO tried to add a Clause for adjusting the contract price at the exercise of an option due to a new DBIA wage decision, which wasn't appropriate for the actual situation. The government didn't incorporate the latest wage rates for electricians when awarding the construction phase. The CBCA didn't say here that the KO can't add a required clause.
Link to comment
Share on other sites

Guest Vern Edwards

Would any of the esteemed WIFCON forum members have other examples of "deeply-ingrained strands of public procurement policy?"

There are at least 30 board and court decisions that discuss the "deeply ingrained" issue. Here are 20 of the most recent:

A. Court decisions:

Earman v. U.S., 114 Fed. Cl. 81 (Dec. 12, 2013)

Bay County, Florida v. U.S., 112 Fed. Cl. 195 (Aug 14, 2013)

Todd Construction LP v. U.S., 94 Fed. Cl. 100 (Jul 30, 2010)

Night Vision Corp. v. U.S., 68 Fed. Cl. 368 (Nov. 8, 2005)

Ryco Const., Inc. v. U.S., 55 Fed. Cl. 2002 ( Dec, 23, 2002)

Dubinsky v. U.S., 43 Fed. Cl. 243 (Mar. 31, 1999)

Gold Line Refining, Ltd. v. U.S., 43 Fed. Cl. 291 (March 25, 1999)

Labat-Anderson, Inc. v. U.S., 42 Fed. Cl. 806 (Jan. 29, 1999)

Green Management Corp. v. U.S., 42 Fed. Cl. 411 (Dec. 14, 1998)

S.J. Amoroso Const. Cp., Inc. v. U.S., 12 F.3d 1072 (Fed. Cir. 1993) (Dec. 17, 1983

B. Board decisions:

K&R Consulting, 13 BCA ¶ 35435 (CBCA) (Sep. 26, 2013)

Space Gateway Support, 13 BCA ¶ 35232 (ASBCA) (Jan 29, 2013)

Hillcrest Aircraft Co., 12-1 BCA ¶ 34939 (CBCA) (Feb. 6, 2012)

W.G. Yates & Sons Constr. Co., 11-1 BCA ¶ 34638 (CBCA) (Dec, 21, 2010)

Parcel 49C Limited Partnership v. GSA, 05-2 ¶ 33098 (GSBCA) (Oct. 18, 2005)

In re American Bank Note, 05-1 BCA ¶ 32867 (AGBCA) ( Feb. 1, 2005)

In re Kearfott Guidance & Navigation Corp., 04-2 BCA ¶ 32757 (ASBCA) (Sep. 27, 2004)

ACE Federal Reporters, Inc. v. GSA, 0202 BCA ¶ 31913 (GSBCA) (Mar. 26, 2002)

Lockheed Martin Librascope Corp., 00-1 BCA ¶ 30635 (ASBCA) (Oct. 29, 1999)

Boeing Defense & Space Group, 98-2 BCA ¶ 29927 (ASBCA) (July 25, 1998)

It is not true that a CO cannot invoke the Christian Doctrine to incorporate a clause. He or she could do so by issuing a final decision of the contracting officer stating that the clause is incorporated by operation of law on he basis of the Christian Doctrine. The contractor could then appeal that decision if it so desired. A board or the Court of Federal Claims would then have to decide if the CO's decision were correct.

Link to comment
Share on other sites

Joel,

What I said about the case was true -- the agency asserted that the clause was in force, even though omitted, under the Christian Doctrine, and wanted to rely on that clause in an attempt to avoid paying the contractor a half-million dollars in a claim. The board disagreed and would not allow the incorporation of the clause (even though the agency asserted it was in force under the Christian Doctrine), and ordered the agency to honor its obligations and to pay the claim. My point in referencing the case is to share with Jonfucius that a Government agency (or contracting officer) does not have an unfettered right to invoke the Christian Doctrine to overcome its own mistakes in contract formation or to avoid its obligations in contract administration. Jonfucius and his co-workers, in the training he/she is developing for them, should not rely on the Christian Doctrine for these purposes. The best way for a contracting officer to deal with these problems is by bilateral modification to the contract to add the "omitted" clause, in my opinion. I have heard agency contracting personnel speak of the Christian Doctrine as a get-out-of-jail-free card, so to speak, or as an excuse for saying the contractor should have known and is therefore liable for whatever costs arise by those personnel's sudden but late realization that the contract they wrote omitted important clauses.

Link to comment
Share on other sites

Guest Vern Edwards

[T]he agency asserted that the clause was in force, even though omitted, under the Christian Doctrine, and wanted to rely on that clause in an attempt to avoid paying the contractor a half-million dollars in a claim. The board disagreed and would not allow the incorporation of the clause (even though the agency asserted it was in force under the Christian Doctrine), and ordered the agency to honor its obligations and to pay the claim.

ji20874:

That sounds like you think that the board held that the clause could have been incorporated into the contract via Christian, but that the board would not allow it. That's not what the board decided. The board held (1) that based on the FAR definition of "option" the clause was not mandatory for the contract in question and (2) that even if it had been, it was not relevant to the issue at hand. See the decision at pages 13 - 14:

GSA contends that this clause [52.222-32] is mandatory and that the Davis-Bacon Act regulations reflect a significant public procurement policy. Appellant responds that the clause is not mandatory and that, even if it were, it does not apply to the situation at hand.

... The clauses relied on by the Government apply when longer term arrangements, in which the Government can extend the term of the contract, come into play. In those circumstances, the clauses added to the FAR in 2001 implement the Government’s intent to ensure that extensions of such contracts use the current prevailing wage and provide for a mechanism to compensate the contractor. Despite GSA’s valiant attempt to persuade the Board that they apply to this contract, we cannot find that they do, since the award of the construction phase of the contract was not an exercise of the type of option intended to be addressed by the subject clause.

Notably, the term “option” is defined under the FAR as “a unilateral right in a contract by which, for a specified time, the Government may elect to purchase additional supplies or services called for by the contract, or may elect to extend the term of the contract.” 48 CFR 2.101. The fee and general conditions approach adopted by GSA following the bid bust, Findings 1-2, contemplated a two-phase process -- a value engineering process, which, if successful, would lead to the separate award of the contract to construct the FBI building. As appellant points out, although GSA called the construction phase an option, the use of the term did not create the type of option contemplated in the FAR. The construction contract awarded is fundamentally the contract contemplated under the original solicitation, with value engineering changes that adjusted the original scope of work so that award could be made at or near GSA’s target price. GSA had no unilateral right to order the construction phase of the contract at an established price. Rather, the parties had to work together to develop a mutually agreeable scope and price for the construction work. The “option” was not to extend the term of an existing contract, but to award or not award, depending on the circumstances.

Against this backdrop, the Actual Method clause identified by GSA is not relevant to this contract, even it if might be applicable to a contract containing option periods as that term is defined in the FAR. As such, even assuming that the clause meets the criteria for application of the Christian doctrine, there is no reason to consider reading it into the contract by operation of law.

In an earlier post you said:

the Christian doctrine only applies when it is applied by a court or board....

That is not true. A CO can assert that the Christian doctrine applies and that a citation to a mandatory clause that is not listed in the contract is incorporated by operation of law. If the contractor disagrees it would have to submit a claim and seek a final decision from the CO. If the CO were to stick to his or her guns, the contractor would have to appeal to a board or the Court of Federal Claims, which would either find for the government or for the contractor based on the law and the facts.

If a CO wants to invoke the Christian doctrine, he or she should not issue an SF30 to insert the clause in the contract. Instead, he or she should notify the contractor in writing that the clause is, in fact, already in the contract, although not physically cited therein, and is considered to have been in the contract since Day One. Send a copy to all interested parties. The CO should not modify the contract to "add" or "insert" the clause, but notify the contractor of the simple fact of its presence. If agency procedure requires an SF30, issue an administrative change to add a citation to the clause in the appropriate place to reflect the clause's presence. See FAR 43.101.

There is more to the Christian Doctrine than most people know, and anyone thinking of invoking it should first study the relevant journal literature, starting with "The Christian Doctrine at 50: Unraveling the Federal Procurement System's Gordian Knot," by Bryan A. Darst, Briefing Papers, October 2013.

Link to comment
Share on other sites

Thanks, Vern. You reminded me that the USACE issued admin mods to many contracts to implement the Prompt Payment Act Amendments of 1988 in my post #9 above. We used the wording "by operation of law" and cited the authority in good old Block 13 of the SF 30 and in the body of the mod. I edited my earlier post accordingly.

Link to comment
Share on other sites

  • 2 weeks later...

You may also wish to view UPMC BRADDOCK v. Seth D. HARRIS, Acting Secretary, United States Department of Labor, 934 F.Supp.2d 238 (2013), United States District Court, District of Columbia, March 30, 2013. This is an unusual situation where the subcontractors wanted the court to adopt the traditional view of the Christian Doctrine and then apply it in the instant case. The traditional view being that the Christian Doctrine only applies to prime contractors, not subcontractors. The court rejected the traditional view for various reasons and went on to apply Federal equal opportunity requirements to three subcontractors by operation of law.



Your audience may enjoy this case. It has far reaching implications for subcontractors.


Link to comment
Share on other sites

Guest Vern Edwards

Carl,

So are you saying that what you posted is a quote from a Linkedin post that was written by Mark Hilar? I wouldn't ask, but it's not in standard Wifcon Forum quote format.

Link to comment
Share on other sites

And just for the record, I know Mark Hijar. I am not Mark Hijar, even though he used my WIFCON tag line.

Let me also add that I believe the context of his reply was CPSR and how the DCMA functional specialists will evaluate the files they review. My interpretation of his LinkedIn post is that he's not saying the DCMA position is consistent with legal precedent; he's saying that that's the position that contractors should expect to encounter when their files are reviewed during a CPSR.

Again, I am NOT Mark Hijar, whom I believe is an attorney and not a self-taught accountant.

H2H

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
×
×
  • Create New...