On November 5, 2018, in K-Con, Inc. v. United Sttes (November 5, 2018) the Court of Appeals for the Federal Circuit inserted a missing FAR clause into a contract. The Court did so under the Christine Doctrine, which has been around since 1963. The Christine Doctrine basically provides that if the Government fails to included a mandatory FAR clause in the contract, the Court will read that FAR clause into the contract by “operation of law.”
In the instant case, the Contracting Officer did not include a bonding requirement on a construction contract. The Court of Appeals for the Federal Circuit held that bonding is mandatory under FAR 52.228-15, “Performance and Payment Bonds—Construction.” The Court therefore inserted this requirement into the contract by operation of law. In other words, even though the Contracting Officer forgot to include the bonding requirement in the contract, the Court will read the contract as if this clause was included.
The Court held that for a clause to be included in a contract under the Christian doctrine, it generally must find (1) that the clause is mandatory; and (2) that it expresses a significant or deeply ingrained strand of public procurement policy.” Here, bonding was mandatory for all construction contracts over $150,000 and was considered an important requirement designed to protect the Government’s interests.
As attorneys, when we suspect that the Government forgot to include a FAR clause, we look to see if it is a mandatory one. If mandatory, the FAR will state that the Government “shall” insert the clause rather than “may.” It is tricky business for the contractor who may not always think like a lawyer.
