G.L. Christian and associates v. US
Encyclopedia
G.L. Christian and associates v. US (375 U.S. 954, 84 S.Ct. 444, 11 L. Ed.2d 314 (1963)), is a 1963 United States
Federal Acquisition Regulation (FAR) case which has become known as the Doctrine of Christian. The case held that standard clauses established by regulations must be considered as being in every Federal contract. Because the FAR is the law, and government contractors are presumed to be familiar with the FAR, the standard clauses are treated as included in every contract, even if inadvertently omitted by the government contracting officer.
s at Fort Polk
, Louisiana
, under the "Capehart Act". Fort Polk was deactivated by the Department of the Army in 1958, and the $32.9 million construction contract was terminated by the Corps of Engineers on February 5, 1958. The contractor responded to the cancellation by submitting claims for costs incurred, settlement expenses, and lost profits. The Dept. of the Army attempted to settle these claims in accordance with the standard “termination for convenience of the government” clause outlined in the Armed Services Procurement Regulations (ASPR). Under this clause, the contractor could claim a profit allowance for work it already had performed, but not for anticipated profits. However, the cocompany argued that because the Army had failed to include this termination for convenience clause in the contract, the Army's cancellation of the project constituted a breach of contract
. The contractor claimed that it thus was entitled to common-law damages for breach, including anticipated profits.
An "unusual feature of the case" is that G.L. Christian and Associates were not negatively affected financially in any way by the termination of the Fort Polk contract. G.L. Christian and Associates attempted to assign the entire contract to Zachry and Centex, two "highly competent construction companies
with extensive experience in large scale-enterprises" but the Department of the Army took the position that a housing contract under the Capehart Act could not be assigned to another company. At a later conference though, it was agreed that the contract would be transferred to Zachry and Centex with a subcontract by G.L. Christian and Associates. Zachry and Centex became the "de facto prime contractor". After the deactivation, Zachry and Centex sued in the name of G.L. Christian and Associates because they had no privity of contract with the Federal Government, and it could not sue the government in its own name.
In 1969, the doctrine of G.L. Christian was expanded. In General Services Administration v. Benson, 415 F.2d 878 (9th Cir. 1969), Benson was in a dispute with the Internal Revenue Service
over property that he had purchased from the General Services Administration
(G.S.A.). Benson filed suit to make the G.S.A. produce various documents needed to present his tax case. The court forbade the G.S.A. from withholding the records, citing a G.S.A. regulation requiring disclosure of records in the absence of a "compeling reason" for non-disclosure.
In contrast, Kunzi in his book Army Law downplays the early expansion of the doctrine of Christian, "Although Christian was cited in over 100 court and board decisions between 1963 and 1976, in only one of these decisions did an adjudicator incorporate a mandatory contract clause into a contract. In every other decision, the court or board either found that the doctrine of Christian did not mandate incorporation, or resolved the dispute. without addressing the incorporation issue...Until the late 1970s, the doctrine of Christian was considered to be a conceptually intriguing, but practically unattainable, tool...The seed that the Christian court planted in 1963 took almost fifteen years to germinate, but once the seed took root, it flourished. Beginning in the early 1980s, the boards of contract appeals began to apply the doctrine of Christian with increasing frequency."
modified the doctrine of Christian, holding that it only "applies to mandatory contract clauses which express a significant or deeply-ingrained strand of public procurement policy."
wrote an opinion suggesting that the court had used the Christian Doctrine to resolve a case that could have been resolved more satisfactorily using other legal principles. He argued for very limited use of the Christian Doctrine based on the following reasons:
The Nash & Cibinic Report
after reporting on several early 1990 Chritisian Doctorine cases wrote:
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
Federal Acquisition Regulation (FAR) case which has become known as the Doctrine of Christian. The case held that standard clauses established by regulations must be considered as being in every Federal contract. Because the FAR is the law, and government contractors are presumed to be familiar with the FAR, the standard clauses are treated as included in every contract, even if inadvertently omitted by the government contracting officer.
Case background
The Army Corps of Engineers signed a contract with G.L. Christian and Associates to build 2,000 housing units for soldierSoldier
A soldier is a member of the land component of national armed forces; whereas a soldier hired for service in a foreign army would be termed a mercenary...
s at Fort Polk
Fort Polk
Fort Polk is a United States Army installation located in Vernon Parish, approximately 7 miles east of Leesville, Louisiana and 20 miles north of DeRidder, Louisiana....
, Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
, under the "Capehart Act". Fort Polk was deactivated by the Department of the Army in 1958, and the $32.9 million construction contract was terminated by the Corps of Engineers on February 5, 1958. The contractor responded to the cancellation by submitting claims for costs incurred, settlement expenses, and lost profits. The Dept. of the Army attempted to settle these claims in accordance with the standard “termination for convenience of the government” clause outlined in the Armed Services Procurement Regulations (ASPR). Under this clause, the contractor could claim a profit allowance for work it already had performed, but not for anticipated profits. However, the cocompany argued that because the Army had failed to include this termination for convenience clause in the contract, the Army's cancellation of the project constituted a breach of contract
Breach of contract
Breach of contract is a legal cause of action in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance....
. The contractor claimed that it thus was entitled to common-law damages for breach, including anticipated profits.
An "unusual feature of the case" is that G.L. Christian and Associates were not negatively affected financially in any way by the termination of the Fort Polk contract. G.L. Christian and Associates attempted to assign the entire contract to Zachry and Centex, two "highly competent construction companies
Construction
In the fields of architecture and civil engineering, construction is a process that consists of the building or assembling of infrastructure. Far from being a single activity, large scale construction is a feat of human multitasking...
with extensive experience in large scale-enterprises" but the Department of the Army took the position that a housing contract under the Capehart Act could not be assigned to another company. At a later conference though, it was agreed that the contract would be transferred to Zachry and Centex with a subcontract by G.L. Christian and Associates. Zachry and Centex became the "de facto prime contractor". After the deactivation, Zachry and Centex sued in the name of G.L. Christian and Associates because they had no privity of contract with the Federal Government, and it could not sue the government in its own name.
Legal expansion
Two years after the filing of G.L. Christian, the U.S. Court of Claims held that this doctrine by the G.L. Christian company could be applied for the benefit of a claimant, as well as for the U.S. Government. This court ruled that an appeal was timely when filed within 60 days after a hearing examiner's decision, as required by U.S. Atomic Energy Commission regulations, despite the fact that the contract contained a clause providing that an appeal should be taken within 30 days.In 1969, the doctrine of G.L. Christian was expanded. In General Services Administration v. Benson, 415 F.2d 878 (9th Cir. 1969), Benson was in a dispute with the Internal Revenue Service
Internal Revenue Service
The Internal Revenue Service is the revenue service of the United States federal government. The agency is a bureau of the Department of the Treasury, and is under the immediate direction of the Commissioner of Internal Revenue...
over property that he had purchased from the General Services Administration
General Services Administration
The General Services Administration is an independent agency of the United States government, established in 1949 to help manage and support the basic functioning of federal agencies. The GSA supplies products and communications for U.S...
(G.S.A.). Benson filed suit to make the G.S.A. produce various documents needed to present his tax case. The court forbade the G.S.A. from withholding the records, citing a G.S.A. regulation requiring disclosure of records in the absence of a "compeling reason" for non-disclosure.
In contrast, Kunzi in his book Army Law downplays the early expansion of the doctrine of Christian, "Although Christian was cited in over 100 court and board decisions between 1963 and 1976, in only one of these decisions did an adjudicator incorporate a mandatory contract clause into a contract. In every other decision, the court or board either found that the doctrine of Christian did not mandate incorporation, or resolved the dispute. without addressing the incorporation issue...Until the late 1970s, the doctrine of Christian was considered to be a conceptually intriguing, but practically unattainable, tool...The seed that the Christian court planted in 1963 took almost fifteen years to germinate, but once the seed took root, it flourished. Beginning in the early 1980s, the boards of contract appeals began to apply the doctrine of Christian with increasing frequency."
Legal contraction
In 1993, a U.S. District Court of AppealUnited States courts of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
modified the doctrine of Christian, holding that it only "applies to mandatory contract clauses which express a significant or deeply-ingrained strand of public procurement policy."
Criticism
In S.J. Amoroso Construction Co. v. U.S., 26 Cl. Ct. 759 (1992), Judge PlagerS. Jay Plager
Sheldon Jay Plager is a Judge for the United States Court of Appeals for the Federal Circuit.He received his Bachelors degree from the University of North Carolina in 1952, and his Juris Doctorate from the University of Florida College of Law in 1958, followed by an LL.M. from Columbia Law School...
wrote an opinion suggesting that the court had used the Christian Doctrine to resolve a case that could have been resolved more satisfactorily using other legal principles. He argued for very limited use of the Christian Doctrine based on the following reasons:
- "First, unlike traditional contract doctrines, the Christian doctrine is not tied to the intent of the parties...the Christian doctrine would have courts interpret cases by invoking an abstract notion of a “significant or deeply ingrained strand of public procurement policy”...a standard that can be tied to anything or nothing, and is therefore inherently unpredictable...The purpose of the Christian doctrine, furthermore, does not appear to be the resolution of disputes among parties to contracts, but rather the protection of the Legislative Branch from encroachment by the Executive Branch..."
- "Second...by virtue of its dominant role in the marketplace, the Government routinely grants itself privileges - like the right to terminate a contract for the Government's convenience without penalty - that are not available to other contracting parties, and indeed would rarely if ever be seen in an "arms-length" contract between private parties. I see no reason for gratuitously granting the Government an even more favored position in its contract activity, and one based on abstract notions of ‘public policy’; to do so smacks more of autocratic rule than freedom of contract."
- "Third, the Christian doctrine...grants the Government authority, without liability, to change its mind post-performance about what a contract was intended to require...Absent predictable contract rights, the market will either refuse to participate, or, more likely, simply increase the price of participation. The Government may save some money in the short run under this principle of “I know my contract rights when I see them," but in the long run the public who pay the costs will be the losers.""
The Nash & Cibinic Report
The Nash & Cibinic Report
The Nash & Cibinic Report is a monthly report providing opinion and advice on current United States government contract issues. The report was written by John Cibinic Jr. and Ralph Nash....
after reporting on several early 1990 Chritisian Doctorine cases wrote:
- "We can't remember an instance where we read more cases and learned less. It is clear that you can't tell a “significant and deeply ingrained strand of procurement policy” when you see it. We don't believe the Federal Circuit knows what it is, and we doubt that the boards will do any better. They have been saved for the last 20 years by being able to mechanically follow the Christian Doctrine to incorporate all mandatory clauses in the contract without analysis or thought. But that day is over. Under the guidance provided by the Federal Circuit, the boards of contract appeals now have to think through each case to determine if the clause meets the General Engineering tests."
See also
- Contracts Disputes Act of 1978.
- HabitabilityHabitabilityHabitability is the conformance of a residence or abode to the implied warranty of habitability. A residence that complies is said to be "habitable". It is an implied warranty or contract, meaning it does not have to be an express contract, covenant, or provision of a contract...
, which covers residences with a type of implied warranty. - Implied warrantyImplied warrantyIn common law jurisdictions, an implied warranty is a contract law term for certain assurances that are presumed to be made in the sale of products or real property, due to the circumstances of the sale. These assurances are characterized as warranties irrespective of whether the seller has...
Further reading
- Full case,
- Nash, Mandatory Clauses: The Regulations Override the Contract 4 The Nash & Cibinic ReportThe Nash & Cibinic ReportThe Nash & Cibinic Report is a monthly report providing opinion and advice on current United States government contract issues. The report was written by John Cibinic Jr. and Ralph Nash....
(N&CR) ¶ 13 (February 1990). - Wyatt, The Christian Doctrine:Born again but Sinfully Confusing. 33 Construction Management Magazine (Const. Mgmt.) 22 (November 1993).