Risk Mitigation in Government Contracting: Drafting Indemnification and Limitation of Liability Clauses
Guidance for Primes and Subcontractors
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
Commercial Law
- event Date
Wednesday, August 28, 2019
- schedule Time
1:00 PM E.T.
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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This CLE course will guide counsel in drafting and negotiating indemnification and limitation of liability provisions in government contracting. The panel will address the significance of these clauses in the government contracting context, identify innovative approaches to drafting these clauses, and offer best practices to enable counsel to structure agreements that lead to high-yield, low-risk government contracting.
Mr. Learned’s practice focuses on advising clients on general corporate and securities matters, including company formation and governance, buy-sell agreements, operating and stockholder agreements, M&As, private offerings of debt and equity securities, corporate divorces and other reorganizations, JVs, small business certifications, executive employment and equity matters, deferred compensation plans, franchise agreements, trademarks, and other commercial contracts and agreements. Mr. Learned has extensive experience working with emerging growth companies, particularly IT and other professional service providers in both the commercial and federal spaces. Mr. Learned has been an adjunct professor at the George Mason University School of Law and is a frequent lecturer on topics related to corporate and transactional matters.
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.
- Overview
- FAR clauses
- Scope of liability in U.S. government prime and subcontracts
- Drafting indemnification provisions
- Drafting limitation of liability provisions
- Innovative techniques for prime contractors and subcontractors to reduce risk
- Special issues in mergers and acquisitions
- Latest cases, decisions, and trends
- Examples of best practices
The panel will review these and other crucial issues:
- What are the parameters of the government's indemnification responsibility under DOJ opinions, OMB guidance, and the FAR, and how can parties alter these obligations contractually?
- How can counsel best mitigate risk when drafting and negotiating indemnification and limitation of liability provisions in government subcontracts and joint ventures?
- How do these liability issues impact the merger and acquisition context?
- What approaches have proven effective for counsel in negotiating indemnification and limitation of liability provisions in government contracts?
- What enforceability challenges do primes and subs commonly face?
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