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In both the private and the government contracting arena, written contracts usually reflect the entire scope of the contracting parties' agreement. In government contracts, however, the written agreement with the government does not always reflect all of the rights, obligations, and responsibilities of the contracting parties. Since 1963, both the courts and the boards of contract appeals have used the Christian doctrine' to incorporate, "as a matter of law," mandatory procurement clauses into government contracts. Generally speaking, there is no counterpart to the Christian doctrine in commercial contracting.
A court's or a board's decision to reform a contract to insert a previously omitted mandatory clause can have far-reaching implications for the unknowing or unwitting offeror. The Christian doctrine has been used to insert clauses unintentionally left out of the contract as well as mandatory clauses that the parties, in good faith, believed they had negotiated out of the contract. For this reason, the insertion of a previously omitted mandatory clause can fundamentally alter the bargain struck between the parties and potentially force a contractor to incur additional costs or obligations that were not anticipated at the time of contract formation. In light of the unanticipated risks and liabilities arising from the insertion of a previously omitted mandatory clause into a contract, the Christian doctrine remains a unique and important principle in government contracting.
To avoid the consequences of the Christian doctrine, government contractors should stay abreast of the mandatory clauses that the government must include in solicitations. Offerors should pay particular attention to the mandatory clauses concerning the following areas: the Truth in Negotiations Act (TINA), the Buy American Act (BAA), government-furnished property, the Fair Labor Standards Act (FLSA), the Service Contract Act (SCA), socioeconomic provisions, and general cost principles.
If an offeror determines that the government has not included a mandatory clause in a solicitation, the offeror should immediately bring the omitted clause to the contracting officer's (CO) attention to determine if the omission was by oversight or properly authorized. A clause may be properly omitted if the CO had the authority to exclude the omitted clause or if a deviation has been authorized by higher authority. Thus a detailed review of a solicitation is critical to a government contractor's determination of whether...