The Government Contract Defense: Should Manufacturer Discretion Preclude its Availability?

The government contract defense developed in cases involving suits against private contractors for damages arising out of the performance of government public works projects. These cases held private contractors immune from liability for damages necessarily incident to the performance of such projects. In several recent cases, manufacturers have been allowed to raise the government contract defense as a bar to liability for injuries caused by design defects in military products supplied to the United States government. In two of these cases, the defense barred liability on behalf of military suppliers who merely executed the government's mandatory design specifications. In subsequent cases, however, courts have held the defense to be available to manufacturers who exercised discretion over the allegedly defective aspect of the product's design.This Note examines those cases holding that the government contract defense may shield a military supplier from design liability. It concludes that the defense should not be available in any case where the manufacturer exercised discretion with respect to the alleged design defect. To allow the defense in such circumstances is inconsistent with the rationale underlying the government contract defense as developed in the public works cases. Moreover, an analysis of the competing public policy considerations leads to the conclusion that military suppliers should not be immune from liability for injuries caused by design flaws which they had discretion to correct.