Government contractors facing products liability suits may have a number of unique defenses available them, depending on the government’s role in the alleged act or omission giving rise to the plaintiff’s claimed harm. One such defense is the “government contractor defense.” Despite its name, successfully establishing the defense requires proof of more than just a government contract.

Here are ten things contractors need to know:

  1. Elements of defense.
    In Boyle v. United Technologies Corp., 487 U.S. 500, 512 (1988), the Court recognized the following three elements 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. Boyle involved design-defect claims. The elements of the test may vary depending on the type of claim at issue.
  2. The defense typically applies to design-defect and failure to warn claims, but can apply to other types of products liability claims as well.
    The government contractor defense generally applies to design-defect claims, failure to warn claims, and breach of warranty claims. It generally does not apply to manufacturing defect claims. However, a plaintiff’s characterization of her own claim is not determinative—for example, a plaintiff cannot defeat the government contractor defense by framing a manufacturing defect claim as a design defect claim. Whether the defense might apply to a particular type of claim also depends on the way that the claim is defined under state law.
  3. Whether the defense applies to non-military contracts depends on the jurisdiction.
    Most courts hold that the government contractor defense can apply to contracts for military or nonmilitary equipment; however, this view is not unanimous. Some courts have held that the government contractor defense applies only in cases involving military equipment.
  4. The defense can also apply to contracts for services, supply contracts, and subcontracts.
    Courts have held that the defense may apply in cases where the underlying government contract was for services, supplies, or a subcontract.
  5. Some jurisdictions recognize similar defenses for state or local procurements.
    The government contractor defense recognized in Boyle does not apply to cases involving an underlying state or local government contract. However, some jurisdictions have recognized similar defenses to products liability claims involving state or local contracts.
  6. It can provide an independent basis for removal.
    The government contractor defense can provide an independent basis for removing a case to federal court. Especially in cases where removal based on diversity of citizenship is not an option, this can be a valuable benefit of asserting the defense.
  7. Litigation involving the defense may present unique concerns for discovery.
    Establishing the government contract defense requires a close look at contract specifications and the government’s role in developing and approving those specifications. Depending on the underlying contract, this analysis may have important implications for discovery (including confidentiality and the potential need for discovery from government personnel, among other considerations). Any such issues should be addressed during the parties’ Rule 26(f) discovery conference and in an appropriately tailored protective order.
  8. The defense may need to be established at trial.
    Although courts sometimes refer to the government contractor defense as an “immunity” and occasionally invoke concepts of “preemption,” it is typically treated as a defense to liability. Given the fact-intensive nature of the defense, it generally will not form the basis for a successful motion to dismiss, and courts are often reluctant to find in a contractor’s favor on the defense on summary judgment. A court’s denial of a dispositive motion based on the government contractor defense is not immediately appealable.
  9. The defense should be developed before litigation.
    Contractors who anticipate products liability suits in which the government contractor defense may apply should lay the groundwork for the defense before any litigation arises. Contractors should carefully review contracts to ensure that the parties’ respective roles concerning design decisions are accurately described in the contract documents. The degree of the government’s involvement in approving specifications is a crucial factor in establishing the defense; thus, to the extent practicable, government participation in the contract effort should be encouraged and documented. If possible, obtain written confirmation from the government that the final product (or service) conforms with the government’s specifications.  Finally, contractors should warn the government of any identified hazards or dangers associated with the product, and document their efforts to do so.
  10. It’s not the only defense available to government contractors.
    Even if the government contractor defense does not apply, contractors’ unique relationship with the government may give rise to other defenses, including Westfall immunity, the combatant activities exception, the political question doctrine, and a variety of potential statutory defenses.