I’ve written before on the illegality defense to breach of contract suits. It’s bedrock contract law that an agreement to do something criminal (example – murder, arson, selling drugs, etc.) is unenforceable against the person who doesn’t perform (example: if I fail to pay a hit man, he can’t sue me for the $).
The illegality defense also applies in the civil context where it can defeat an agreement that runs afoul of a State or Federal statute. The policy underpinning for the illegality rule is that it would make a mockery of the justice system if you could sue to enforce an agreement to commit a crime.
Energy Labs, Inc. v. Edwards Engineering, 2015 WL 3504974 (N.D.Ill. 2015) examines contractual illegality in the context of a high-dollar subcontract to supply HVAC equipment to the Chicago Transit Authority (CTA).
The plaintiff air conditioning parts subcontractor was hired by the defendant to provide parts in connection with the defendant’s contract with the CTA. When the defendant found out that plaintiff was procuring its parts in a foreign country, it cancelled the contract since the Buy America Act, 49 U.S.C. s. 5323 (“BAA”) required the parts used in the CTA project to be made in the U.S.
Plaintiff sued to recover damages resulting from the defendant’s contract cancellation since plaintiff had already designed and started making the HVAC parts. Defendant moved to dismiss on the basis that the contract was illegal since it violated the BAA.
The court denied the motion to dismiss. While the general rule is that a contract that violates a Federal statute is normally unenforceable, the court said the rule isn’t automatic. Instead, the court considers the “pros and cons” of enforcing the putative illegal contract taking into account the benefits of upholding the contract against the drawbacks of doing so.
Even if a contract isn’t illegal, a Federal court can still refuse to enforce it when doing so would violated a clear congressional goal or policy.
Illegality also applies where a contract isn’t illegal on its face but requires a contracting party to commit an illegal act carrying out its obligations.
To determine whether a contract violates a Federal statute, the court compares the four-corners of the contract to the statutory text and any interpreting case law.(*3).
Here, the court found that the contract wasn’t explicitly illegal. The purchase orders submitted by the general contractor defendant didn’t require it to pay for plaintiff’s services with Federal funds. The defendant was free to pay the plaintiff with its own funds; not the government’s.
In addition, the BAA doesn’t outlaw the sale of all foreign-made air conditioning units to government agencies like the CTA. It instead only applies to projects that are paid for at least in part with Federal funds. As a consequence, the contract wasn’t illegal on its face.
Next, the court rejected the defendant’s argument that allowing plaintiff to enforce the contract violated public policy. In the procurement contract context, where there is a mandatory contract term that is based on a strong Federal policy, this policy is read into the contract by operation of law.
However, this so-called Christian doctrine1 only applies to parties that contract directly with the government; not to subcontractors like the plaintiff. This is because subcontractors contract with general contractors, not with the government.
To impose a Federal procurement edict on a subcontractor who often doesn’t even know he is contracting for government work is plainly unfair. (*5).
An interesting discussion of the illegality defense in somewhat arcane context of Federal procurement rules. The court gave a constricted reading to the illegality rule and looked at the underlying fairness if the contract was defeated.
The fact that the plaintiff performed extensive work before termination figured heavily in the court’s analysis. Another key ruling is that only general contractors, not subcontractors like the plaintiff here, have the duty to inquire into applicable procurement requirements.
1. G.L. Christian and Associates v. United States, 312 F.2d 418 (1963).