Risk Mitigation in Government Contracting: Drafting Indemnification and Limitation of Liability Clauses

A marked increase in federal procurement spending during the past two years has fueled a surge in federal government contracting opportunities. From government-wide acquisition contracts to small business and simplified acquisitions, spending is on the rise. More particularly though, the government is moving more and more towards consolidated contracts that require multiple contractors to work together either through joint ventures or more traditional prime/subcontractor relationships. But contracting with the federal government and working with other contractors involves unique risks and uncertainties.

In addition to the rise in federal procurement spending, there also has been a rise in federal contractor mergers and acquisitions. And, as is the case with government contractors working together, acquiring or merging with another contractor involves unique risks and uncertainties.

Key risk-shifting clauses--such as indemnification and limitation of liability provisions--are like those used in commercial contracts, but the federal government is subject to unique contractual limitations which restrict the means and scope of contractual indemnification. These unique risks flow down into the joint venture and subcontracting relationships and also impact liability in the mergers and acquisitions context.

Listen as our authoritative panel of veteran government contracts and corporate attorneys identifies innovative strategies and provides practical guidance in drafting these clauses in the government contracting context. The group will discuss the latest best practices on language and clause usage and highlight recent developments--underscoring the issues faced by contractors when relying on these tools.