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Expansion of the Christian Doctrine?


Guest Vern Edwards

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Guest Vern Edwards

I am reading two series of decisions by the Court of Federal Claims in which the court seems to have expanded coverage of the Christian Doctrine, though I am not sure. The most recent decisions in each series are BLR Group of America, Inc. v. U.S., --- Fed. Cl. ----, COFC No. 07-579C, Aug. 16, 2010, and Todd Construction, L.P. v. U.S., --- Fed. Cl. ---, COFC No. 07-324C, July 30, 2010.

In those cases contractors challenged the past performance ratings given them after completion of performance. The COFC has held that the contractors could base a claim on the past performance regulations, even though those regulations are not required to be incorporated into contracts by any mandatory clause. In the Todd decision, the court expressly invoked the Christian doctrine. In other words, certain passages in FAR and in agency FAR supplements are effectively part of a contract even though those regulations are not supposed to be incorporated into a contract. The rule is more complicated than I am making it seem, and you'll have to read the decisions in order to understand it fully.

I have always thought of the Christian Doctrine as applying only to clauses, but not to other parts of the FAR.

This strikes me as new and different, but reading the decisions and some recent analysis indicates that the COFC has taken this position for a while. Those of you with access might want to read the analysis in the August 25 edition of Government Contractor, 52 GOVTCONT ? 288, and the earlier analysis in Procurement Lawyer, 45-WTR PROCLAW 3.

I need to read all five decisions and think them through, but what I have read so far has already had an effect on my thinking of the relationship between FAR and contracts.

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Thank you for sharing.

As a contractor I have come across several situations in which the Government's contractor performance evaluations have been more harsh than the facts warrant, admittedly a subjective observation, and one situation in which the Government did not follow its own procedures for evaluating performance, but would not reconsider its evaluation even in the face of documentation that was purely factual and objective in nature, signed in the field by both Government and contractor representatives, that contradicted the Government's findings and did not support the evaluation conclusions. The Government gave the impression of wanting to stonewall rather than admit even the most minor error, in spite of obvious factual inconsistencies between evaluations and other Government documents.

Of course a contractor would love to be able to hold the Government accountable for following its own procedures, or more accurately, not following them, regardless of whether they are within the four corners of the contract. Contractors are required to follow certain rules, and both as contracting parties and as taxpaying legal entities, should be able to rely on the Government to do likewise.

The two COFC decisions did not provide that level of relief to the contractors who sought it, but did provide some interesting discussions that pointed to circumstances in which such relief might be granted.

It appears that BLR lost because it failed to clearly state a claim to the contracting officer. Along the way, however, BLR made it through some significant hurdles, having asserted entitlement to relief as a matter of right, that the relief was related to the contract, and mootness. Even though the basis of the claim and nature of relief sought were clearly expressed, it was not done in the context of a claim and did not specify that it was indeed a claim. Having failed the test of having submitted a CDA claim, it could not logically pass the last test, that there was a denial or deemed denial of a claim. The discussions of bias, mootness, standard of review, and jurisdiction are most edifying.

Todd apparently lost because it failed to manage properly its subcontracting effort, and no amount of subsequent argument about contributing factors, no matter how serious, could change that. Along the way, this case raised the subject of Christian in a new way, that contractors are happy to see. Like BLR, this case goes into the question of standing, and for whose benefit the regulations are intended, chasing the intent all the way back to the source to find in many cases that is it not only the Government but also contractors or bidders. To me it was especially interesting how the Court took part of Todd's complaint that was mistakenly limited to an Engineering Regulation and also brought in the FAR treatment of the subject to give Todd's point equitable deliberation.

My thinking about the FAR and contracts has continued to change since I got into the business in 1974, and I hope it always will. With this kind of food for thought, in this kind of forum, we should all keep growing, learning, and changing.

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Thanks for those references Vern.

It seems Nash & Cibinic interpret Chrysler Corp. v. Brown, 441 U.S. 281 (1979) similarly in their report Legal Status of Government Manuals and Instructions: Putting the Fox in Charge of the Chickens, 1 N&CR ? 77 (Oct. 1987).

"The Supreme Court held that for a regulation to have the force and effect of law it must be:

1. Promulgated pursuant to a statute which can be reasonably said to contemplate the regulations, and

2. Published in accordance with the prior notice and hearing requirements of Administrative Procured Act, 5 U.S.C. 553.

The Court held that such regulations are, in effect, the result of Congress' delegation of its legislative powers to the executive agencies. Their legal status makes them binding on persons, including Government contractors and subcontractors, regardless of contractual agreement."

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Guest Vern Edwards

Different problem, garth. The issue at hand is whether a regulation that has not been incorporated into a contract can be the basis for a contractor claim. The fact that a regulation has the force and effect of law means only that a court must decide an issue in accordance with the regulation. It does not mean that the regulation can be the basis for a contractor claim. If it's not the basis for a claim, the contractor can't get into court.

Read the decisions and the commentary that I cited. You will see that the issue is very complicated and is not as simple as "the force and effect of law." Among other things, there is the issue of whether the regulation is general or specific and the issue of the principle purpose of the statute or regulation and the intended beneficiary.

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  • 1 month later...

Vern,

I finally carved out some time to read the cases; unfortunately I do not have access to the commentaries you referenced.

I see your point; the cases address the obligation of individuals within the federal agency to adhere to regulatory requirements and a contractor?s means to redress violations.

Coming from industry I was looking at the question a little differently ? obligations of contractors to comply with regulatory requirements ? absent any contractual commitment - and the Government?s ability to enforce such requirements.

However, I think the root problem or question is the same. Do the regulations have the ?force and effect of law?; and the conclusion that the regulations can affect the rights and obligations of individuals ? absent any contractual provisions or explicit statutory language ? appears to be the right one.

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This explores previously uncharted territory: a claim based on the agency not following a regulation that is not within the four corners of the contract but is nonetheless binding on the agency.

In other words, is a contractor entitled to rely on the agency to follow the agency's rules, even those outside the contract, and to claim if the agency does not follow those rules?

Looks like COFC has placed some important guide posts in that previously uncharted territory.

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Guest Vern Edwards

The COFC is sometimes all over the map. Also, the decision of a judge on the COFC is not binding on the other judges of the COFC.

Who knows what those decisions mean?

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