CategoriesDefense

8 Things Contractors Need to Know About the Government Contractor Defense

There are several unique defenses available to government contractors facing product liability lawsuits. One of the most common defenses is the “government contractor defense,” which protects private contractors from specific liability claims when they do business with the U.S. government. The two primary forms of defense are a common law defense and a statutory defense, also known as the SAFETY Act. 

1. Components of defense.   

In the landmark case Boyle v. United Technologies Corp., 487 U.S. 500, 512 (1988), the Court recognized the following three components of the government contractor defense: (1) the United States approved reasonably precise specifications for the product being supplied; (2) the product conformed to those specifications; and (3) the supplier warned the United States about any dangers in use of the product known to the supplier but not known to the United States. 

Typically, the government contractor defense applies to design-defect claims, failure to warn claims, and breach of warranty claims. However, it generally does not apply to manufacturing defect claims. How state law defines a suit determines whether the defense can be used. 

2. Other claims in which the government contractor defense may be applied. 

Although many courts uphold that the government contractor defense can be applied to contracts for both military and nonmilitary equipment, some courts rule that defense only applies to cases involving military equipment. Additionally, courts have applied defense to claims about supply contracts, subcontracts, and service contracts. 

3. There are similar defenses for state and local procurement. 

While Boyle does not recognize cases involving an underlying state or local government contract, some jurisdictions have applied similar defenses to product liability claims. 

4. The government contractor defense can provide an independent basis for removal. 

One valuable benefit of claiming the defense is that it can provide an independent basis for removing a case to the federal government.   

5. Develop the defense before litigation.

Before any litigation arises, contractors should lay the groundwork for the defense. Start by reviewing the contracts to ensure that the functions and aspects of the designs are accurately noted within the contract documents. Furthermore, when establishing a defense, it is vital to understand that the extent to which the government was involved in approving specifications will play a huge role. 

When possible, obtain written confirmation from the government that the final product (or service) conforms with the government’s specifications. Lastly, contractors should always document their efforts to warn the government of any identified hazards or dangers associated with the product.

6. Establishing the defense may lead to requests for discovery. 

Asserting the government contract defense requires an in-depth analysis of contract specifications and the government’s role in the approval process of such specifications. This evaluation may elicit unique concerns for discovery. During the Rule 26(f) discovery conference, all issues should be discussed in the appropriate protective order.

7. Establishing the defense could mean going to trial. 

Because facts intensely drive the defense, it typically does not fit the qualifications for a dispositive motion. It is treated as a liability defense rather than an “immunity.”

8. There are other defenses available to government contractors.

Contractors may access other defenses, including Westfall immunity, the combatant activities exception, the political question doctrine, and various potential statutory defenses. 

References

  1. 63A Am. Jur. 2d Products Liability §§ 1347-1389 (2018).
  2. 6 CFR Part 25. Regulations Implementing the Support Anti-terrorism by Fostering Effective Technologies Act of 2002. (the SAFETY Act).
  3. Boyle v. United Technologies Corp., 487 U.S. 500 (1988). 9 September, 2018.
  4. Brian Sheppard, Annotation, The Government Contractor Defense to State Products-Liability Claims, 53 A.L.R.5th 535 (2018).
  5. Department of Homeland Security. Safety Act for Liability Protection. DHS, Washington, DC: 2016.
  6. National Contract Management Association. 2016 Annual Review of Government Contracting. NCMA, Ashburn, VA: 2017.

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