Thoughts concerning indemnification in government contracts

Abstract

This article addresses the subject of indemnification provisions found in “old” (pre-CERCLA) government contracts. Government facilities and their lawyers are increasingly being presented with ancient contract documents containing indemnification provisions that purport to shift the responsibility for paying for CERCLA or CERCLA-like response actions from the contractor to the government. While the government should honor indemnification provisions where appropriate, it is unclear that these general provisions were intended to address environmental liabilities comprehended by CERCLA. The article points out a number of issues which should be considered, in the opinion of the author, before a government lawyer agrees that indemnification is proper. The article concludes that these old indemnification provisions must be reviewed in context and with full consideration of all arguments for and against their application.