In 1963, the U.S. Court of Claims established a rule known as the “Christian Doctrine,” which provides that certain mandatory contract clauses are incorporated, by law, into an otherwise validly awarded contract, even if the contracting agency accidentally omits that clause from the solicitation. Over the past 60 years, the “Christian Doctrine,” has been used to imply various mandatory, but omitted, contract clauses into federal contracts. However, in a protest decision published last week, NCS/EML JV, LLC, B-412277, et al., the Government Accountability Office (GAO) held that while the Christian Doctrine can be used to imply a mandatory clause into a contract, it cannot be used to imply a mandatory clause into a solicitation. This decision may reflect a split between GAO and the U.S. Court of Federal Claims (COFC) on the application of the Christian Doctrine. Had this protest been filed at COFC rather than GAO, it might have been sustained.
In this case, the protestor, NCS/EML JV, argued that the Navy’s award of contract for maintenance center equipment services to Pegasus Support Services (Pegasus) was improper because Pegasus’ proposal violated the requirements of FAR clause 52.219-14, Limitations on Subcontracting (which, for services contracts, requires the prime contractor to self-perform at least 50 percent of the cost of the contract). Because the RFP at issue was a small business set-aside, FAR 52.219-14 should have been included in the RFP. However, for some reason, the RFP did not incorporate FAR 52.219-14. NCS/EML JV argued that even though the RFP omitted FAR 52.219-14, the clause was incorporated into the RFP by operation of law, pursuant to the Christian Doctrine. GAO rejected this argument:
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.
As a result, because FAR 52.219-14 was not incorporated into the RFP, by reference or by law, GAO dismissed the protest argument. GAO further noted that, to the extent NCS/EML JV was claiming that the RFP should have included FAR 52.219-14, that protest ground was untimely because it was not filed by the deadline for proposals.
While GAO’s decision in NCS/EML JV, LLC appears to be consistent with its prior opinions refusing to apply the Christian Doctrine to solicitations, the decision may conflict with COFC’s ruling in a similar bid protest 10 years ago. Continue Reading