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:
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. In Transatlantic Lines LLC v. United States, 68 Fed. Cl. 48 (2005), COFC was faced with a similar situation where, despite the fact FAR 19.508(e) required the inclusion of FAR 52.219-14 in the subject solicitation, the contracting officer neglected to incorporate that clause into the solicitation. After the agency awarded the contract to another bidder, Transatlantic Lines filed a protest at GAO challenging the award on the basis that the awardee’s proposal did not meet the subcontracting limitations of FAR 52.219-14. GAO denied the protest, ruling that Transatlantic Lines’s allegations regarding FAR 52.219-14 were untimely. Transatlantic Lines then filed a protest at COFC. In defending against the protest, the government argued that the Christian Doctrine applied to contracts, not solicitations, and therefore FAR 52.219-14 was not implied by law into the solicitation. While Transatlantic Lines did not depend on the Christian Doctrine — arguing instead that the subcontracting limitation was by required by law for small business set-asides — COFC seemingly rejected the government’s argument that the Christian Doctrine did not apply to solicitations, noting that “solicitations for government contracts are interpreted in the same manner as the contracts themselves; the same rules of construction apply.” Ultimately, COFC sustained the protest, finding that the awardee’s proposal did not comply with the limitation on subcontracting clause.[1]
The contrast between GAO’s decision in NCS/EML JV, LLC, and COFC’s decision in Transatlantic Lines, reflects that the two primary federal bid protest forums do not always agree on the application of substantive law. Knowing the differences between GAO’s and COFC’s applications of procurement law is a key factor in deciding which forum to file a protest. From the Transatlantic Lines case, it certainly appears that had NCS/EML JV filed its protest at COFC rather than GAO, and had it been able to prove that Pegasus’ proposal, on its face, did not comply with the subcontracting limitations of FAR 52.219-14(c)(1) and 15 U.S.C. § 657s(a)(1), COFC very well may have sustained its protest.