DOD, GSA, and NASA Address DOJ Concerns Regarding the Use of Unrestricted Indemnification Clauses for Social Media Application Procurements

February 19, 2014

DOD, GSA, and NASA Address DOJ Concerns Regarding the Use of Unrestricted Indemnification Clauses for Social Media Application Procurements

On December 31, 2013, the Department of Defense (DOD), the General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA) issued a final rule to address concerns raised by the Department of Justice (DOJ) Office of Legal Counsel in an opinion titled “Memorandum for Barbara S. Fredericks, Assistant General Counsel for Administration, United States Department of Commerce.” The opinion asserted that the Anti-Deficiency Act (Pub. L. 97-258) is violated when an employee with authority to bind the government consents, without statutory authority, to an open-ended, unrestricted indemnification clause. More specifically, the opinion discussed situations in which a government purchase card holder consents to an open-ended indemnification clause as part of an online terms of service agreement encountered while registering for a social media account. This rule provides guidance on this issue by clarifying that the inclusion of an open-ended indemnification clause in a terms of service agreement is not binding on the government unless expressly authorized by law. This rule became effective December 31, 2013. (78 Fed. Reg. 80382, 12/31/2013.)






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