PFAS and Federal Contracting: What Contractors Should Know and Why

By Leah Kaiser | JDSurpa | September 15, 2022

Read the full article by Leah Kaiser (JDSurpa)

"Per- and polyfluoroalkyl substances, commonly known as PFAS, are long-lasting chemicals that are quickly gaining notoriety for both their persistence in the environment and their ubiquity in water, air, and soil. Developed in the 1950s, PFAS are used in a wide range of products including firefighting foam, stain-resistant and water-repellant fabrics, nonstick cookware and many others. Concerns over PFAS contamination are mounting and the associated caselaw is growing. Federal contractors could be impacted by PFAS in two primary ways: first, contractors may face PFAS-related litigation resulting from the manufacture and distribution of affected products and second, contractors may have to adjust specifications to comply with the government’s shift away from products containing PFAS.

Government Contractor Defense & PFAS Liability

The Department of Defense (DoD) began using PFAS in the 1970s in the form of aqueous film forming foam (AFFF). Current estimates suggest that there are likely hundreds of military installations in the U.S. that are contaminated by PFAS. This contamination has started to lead to litigation: For example, approximately 500 cases were consolidated into multidistrict litigation before the District Court of South Carolina – these cases allege groundwater contamination (among other issues) based on AFFF use at military bases and other sites. The defendants have raised the government contractor defense which is now a key issue in the case."