Hencely v. Fluor Corp. · ¶27

To craft a rule of decision for suits against federal procurement contractors, Boyle turned to the FTCA, which preserves the Federal Government's sovereign immunity against a claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty,” § 2680(a). See id., at 511. Because the Federal Government cannot be sued for exercising its discretion to select helicopter designs, the Court concluded that “state law which holds Government contractors liable for design defects in military equipment does in some circumstances” require displacement. Id., at 512. But even then, not all tort suits arising out of design defects in federally procured equipment are preempted. The Court instead adopted a three-part test requiring preemption if (1) the United States approved precise specifications; (2) the equipment conformed to them; and (3) the…

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