Department of Energy contractors and subcontractors, including those working for the National Nuclear Security Administration, can be indemnified from damages arising from work to counter COVID-19, under a determination published this week by Secretary of Energy Dan Brouillette.
“The unprecedented magnitude and challenges associated with responding to COVID-19 present significant potential – even if remote – liability risks to the Depatiment’s contractors and their subcontractors that have been or may be requested to assist in response activities and in related supporting roles,” Brouillette wrote in a March 26 secretarial determination. “The nature and magnitude of the COVID-19 pandemic indicate that unusually hazardous risks are involved and that all actors, including the Department’s contractors and their subcontractors, may be exposed to potentially large claims and legal liabilities for which no insurance is readily available.”
The order relies on indemnity provided by Public Law 85-804. It would remain in force through June 30, covering testing for the presence of the virus, supply of equipment and other resources, and development of vaccines or other treatments.
The order also indemnifies contractors that plan to offer DOE computing facilities to scientists who want to model the spread of COVID-19, or research potential cures for the disease caused by the novel coronavirus that broke out in Wuhan, China, last year. The Energy Department and the National Nuclear Security Administration (NNSA) plan to offer some some national laboratory computers for this purpose.
Along with the order, Brouillette provided a sample paragraph that can be used to incorporate that indemnity into existing contracts.
In part, that paragraph says contractors and subcontractors can be indemnified against damages arising from “[p]articipation in tasks or activities by the Contractor or its subcontractors on or after March 13, 2020 through June 30, 2020 that is directed or authorized by the U.S. Department of Energy or the U.S. Department of Energy National Nuclear Security Administration, including work for others, as an element of activities taken now and through June 30, 2020 in response to COVID-19, including but not limited to efforts to test for the presence of COVID-19, to provide equipment and resources to address COVID-19, and to develop treatments and vaccines for COVID-19.”
COVID-19 has spread rapidly across the United States, killing thousands and infecting hundreds of thousands in what experts estimate is yet the early part of an outbreak that could claim hundreds of thousands of American lives, if not more. The Energy Department and its semiautonomous National Nuclear Security Administration (NNSA) had recorded around 20 confirmed cases within their aggregate workforce: nearly double the total disclosed last week.
At the NNSA, which is in the middle of several nuclear weapons modernization programs, workers are needed for round-the-clock national security jobs that the Pentagon deems essential to U.S. security. There were around 245,000 confirmed U.S. cases of COVID-19 at deadline Friday, from which more than 6,000 people had died and more than 9,200 people had recovered.
