Defense contractors are poised to reconsider their approaches to risk and contract pricing, in light of the US Supreme Court’s decision to reinstate a soldier’s suit accusing Fluor Corp. of failing to stop an Afghanistan bombing. Plaintiffs seeking to hold contractors accountable for misconduct may now advance their suits by showing a gap between what the government wanted from a contractor and what the company did.
Bracewell’s Robert Wagman told Bloomberg Law the decision “does not change anything” and that in certain cases contractors will still be able to invoke immunity. Contractors can invoke immunity if the government is negligent, Wagman said, but Fluor’s alleged negligent supervision of the bomber is the issue here.
Wagman noted that Justice Thomas’s opinion for the majority said the Army approved the bomber’s presence at the base, but the opinion seemed to rely exclusively on the government investigation concluding Fluor was at fault. Fluor should now “try to show that the government either expressly or tacitly approved Fluor’s performance and try to shift responsibility back to the government,” Wagman said.
