October 18, 2011

In this article, Jenner & Block Associates Carrie F. Apfel and Damien C. Specht describe the groundbreaking 1963 decision in G.L. Christian & Assoc. v. United States, in which the Court of Federal Claims incorporated into a government contract an omitted but mandatory Armed Services Procurement Regulations (ASPR) “termination for convenience” clause.  Since then, contractors and government contracts law practitioners have been on notice that their contracts may be found to include additional terms beyond those included within the four corners of the document.

The authors then examine the questions of whether the Christian doctrine reaches beyond the Federal Acquisition Regulation (FAR) and Defense Federal Acquisition Regulation Supplement (DFARS) contexts to include regulations of agencies governed by different statutory schemes, and whether expansion of the doctrine into these other contexts is a good idea.  They conclude that, with few exceptions, the doctrine has been limited to the FAR and DFARS and their predecessor, the ASPR.  Ms. Apfel and Mr. Specht suggest that to extend the doctrine’s reach would benefit contractors, writing, “Doing so provides contractors with a ready mechanism to protect their interest, level the playing field, and ensure that those mandatory provisions designed to serve their interests…are included in their contracts.”  However, they also caution that “there do remain some serious risks that contractors and government contracts law practitioners should keep in mind when advocating such an extension.”