Can an early ship clause be assumed in all types of contracts unless otherwise stated? If so, how would you review Valid Time Phasing with regards to MMAS Standard 2?
“The principle of government contract law known as the Christian doctrine states that certain clauses are of such importance in public procurements so as to be considered incorporated by operation of law. The government has a responsibility to notice vendors of contract requirements, whether expressly or through incorporation by reference. However, since G.L. Christian & Assocs. v. United States, 312 F.2d 418 (Ct. Cl. 1963) a mandatory contract clause that conveys a deeply ingrained strand of public procurement policy is considered to be included even if it is not actually in the agreement.
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The Christian doctrine does not apply to every regulation not appearing in a contract. Whether the Christian doctrine applies “turns not on whether the clause was intentionally or inadvertently omitted, but on whether procurement policies are being ‘avoided or evaded (deliberately or negligently).’” S.J. Amoroso Const. Co., Inc. v. U.S., 12 F.3d 1072, 1075 (quoting G.L. Christian & Assocs., 320 F.2d at 351). Therefore, the principle does not permit the automatic incorporation of every required contract clause; rather, it applies only to contract clauses that are a significant or deeply ingrained part of public procurement policy. For example, when improper FAR terms are incorporated into a contract, under the Christian doctrine, the correct FAR provisions would control if they are considered deeply ingrained in public procurements. Or, when a terminations clause – a provision having been held to be sufficiently significant – is omitted, the courts, pursuant to the Christian doctrine, will read such into the contract.
While no universal list of clauses covered by the Christian doctrine exists, various courts and boards have consistently held that the disputes clause, termination clauses, changes and payment clauses, and clauses implementing provisions of the Buy America Act and Truth in Negotiations Act meet the significant or deeply ingrained strand of public procurement policy standard. Again, while the Christian doctrine does not require a court to insert a clause into a government contract, it has been utilized in numerous instances and as to a variety of provisions. As such, contractors will want to be mindful of arguments based on failure to include a contract clause or including the wrong clause since, per the Christian doctrine, doing so is not necessarily a bar to the government’s ability to enforce or recover under an aspect of the contract. “ from ASBCA No. 49515.
Based on the above from the Armed Services Board of Contract Appeals, I would posit that the clause you referenced would not be covered by the Christian Doctrine. However, you might also want to query your local legal office for their input on this issue.