Limitation of Subcontracting Clause and Christian doctrine

[bob7947]

#1 Started by Whynot, Jan 29 2016 02:00 PM

In the recent GAO case posted on WIFCON, GAO found that the limitation of subcontracting clause at 52.219-14 should not be incorporated into the RFP/contract through the Christian doctrine and stated that this argument is without merit. I don’t understand GAO’s reasoning.

From the case:
With respect to subcontracting, NCS/EML argues that the awardee’s offer failed to comply with FAR clause 52.219 14, limitations on subcontracting. We dismiss this aspect of NCS/EML’s protest. While the solicitation was set aside for small businesses, the RFP did not incorporate FAR clause 52.219-14. Indeed, NCS/EML’s protest acknowledges that the clause was not included in the solicitation. Accordingly, this allegation is factually and legally insufficient, and we will not consider it. 4 C.F.R. §§ 21.1©(4), 21.5(f); Excalibur Laundries, Inc., B 405814, B 405814.2, Jan. 3, 2012, 2012 CPD ¶ 1 at 6 (allegation that the awardee’s proposal did not comply with FAR clause 52.219-14 is factually and legally insufficient where the solicitation--set aside for small businesses--did not incorporate the clause).

Footnote 10.
The protester nonetheless asserts that the clause “is incorporated [into the contract] by operation of law pursuant to the Christian doctrine.” Protester’s Dismissal Request Response (Oct. 22, 2015) at 3. This assertion is without merit. The "Christian Doctrine" provides only for incorporation by law of certain mandatory contract clauses into otherwise validly awarded government contracts; it does not stand for the proposition that provisions are similarly incorporated, by law, into solicitations. See QuesTech, Inc., B-255095, Feb 7, 1994, 94-1 CPD ¶ 82 at 5-6; see also Goel Servs., Inc., B-310822.2, May 23, 2008, 2008 CPD ¶ 99 at 2; American Imaging Servs., Inc.--Recon., B-250861.2, Jan. 5, 1993, 93-1 CPD ¶ 13 at 2; Parsons Precision Prods. Inc., B-249940, Dec. 22, 1992, 92-2 CPD ¶ 431 at 5-6; Dataproducts New England, Inc., et al., B-246149.3 et al., Feb. 26, 1992, 92-1 CPD ¶ 231 at 14; Diemaco, Inc., B-246065, Oct. 31, 1991, 91-2 CPD ¶ 414 at 2-3 n.2

http://www.wifcon.com/pd52_21914.htm

[bob7947]

Post #2: Posted by retreadfed on 29 January 2016 - 03:50 PM

Whynot, as fn 10 indicates, the GAO has long held that the Christian Doctrine does not apply to solicitations. If a potential offeror believes a required clause has been omitted from the solicitation, that offeror should file a pre-proposal protest asserting a defect in the solicitation. Here, the protester did not do so and the GAO held that any attempt to raise this issue after proposals were submitted would be too late. See, fn 11.

[bob7947]

Post # 3: Posted by Whynot on February 1, 2016 at 1:30 PM:

The footnote does not say it quite that way. it says:

The "Christian Doctrine" provides only for incorporation by law of certain mandatory contract clauses into otherwise validly awarded government contracts; it does not stand for the proposition that provisions are similarly incorporated, by law, into solicitations.

it talks about provisions and clauses not solicitations and contracts. I was thinking that you could have a mandatory clause in a solicitation. Perhaps a clause in a solicitation, prior to contract award, is only considered to be a provision or is not yet active.

[bob7947]

Post #4 posted by Don Mansfield on February 1, 2016 at 2:38 PM:

Whynot, on 01 Feb 2016 - 1:30 PM, said:

Perhaps a clause in a solicitation, prior to contract award, is only considered to be a provision or is not yet active.

Nope. A clause is a clause whether it's in a solicitation or a contract. See definition of "contract clause" at FAR 2.101:

“Contract clause” or “clause” means a term or condition used in contracts or in both solicitations and contracts, and applying after contract award or both before and after award.

[bob7947]

Post # 5 posted by Vern Edwards on February 1, 2016 at 02:46 PM:

Whynot:

The GAO has discussed the Christian Doctrine in about 42 decisions and has consistently refused to apply it to solicitations, However, its reasoning has not always been clear and consistent. Here is perhaps the best explanation you'll get, from Met Electrical Testing Co., B-198834, 80-2 CPD ¶ 398, Nov. 28, 1980:

IT HAS BEEN THE POSITION OF OUR OFFICE THAT THE SO-CALLED ‘CHRISTIAN DOCTRINE‘ IS LIMITED TO THE INCORPORATION OF MANDATORY CONTRACT CLAUSES INTO AN OTHERWISE VALIDLY AWARDED GOVERNMENT CONTRACT AND DOES NOT STAND FOR THE PROPOSITION THAT MANDATORY PROVISIONS MAY OR SHOULD BE INCORPORATED INTO AN INVITATION FOR BIDS/REQUEST FOR PROPOSALS WHERE THOSE PROVISIONS HAVE BEEN INADVERTENTLY OMITTED. 47 COMP. GEN. 685 (1968).

Capitalization in original. In short, the Court of Claims, in promulgating the Christian Doctrine, applied it to contracts, not solicitations, and that's that.

Don, the GAO has often used the term "provision" to include clauses. It's decisions about the Christian Doctrine long predate the FAR and its creation of the term "solicitation provision."