438
Breyer, J., dissenting
ed.). Ante, at 427, and n. 10 (citing In re Assumption by Government of Contractor Liability to Third Persons— Reconsideration, 62 Comp. Gen. 361 (1983)). The problem with this argument is that other Comptroller General opinions say that an agreement to indemnify that is not open-ended, but is capped at an amount that a private insurer might have provided, is not improper. See Reimbursement of Costs in Connection with Liabilities to Third Parties for Employees' Negligence, 22 Comp. Gen. 892 (1943). A capped agreement, which, if reflected in the contract price, makes the Government a kind of self-insurer, is in effect within the appropriation (because the expenditure of assuming the risk of liability will roughly equal the cost of premiums that the Government saves by self-insuring), and may well prove sufficient for the plaintiffs' purposes. After all, on plaintiffs' factual allegations, a contractor who was as aware of the plaintiffs' alleged risks as was the Government would have sensed trouble, wanted insurance, and likely have obtained a premium payment sufficient to buy it. The companies need argue only for a capped implicit warranty that would treat the unknowing contractor similarly. See also In re Government Indemnification of Public Utilities Against Loss Arising Out of Sale of Power to Government, 59 Comp. Gen. 705 (1980) (indemnification in contracts with a "sole source" of a good or service lawful under Anti-Deficiency Act). Whether an agreement to spend money beyond that which was appropriated is in writing or not is irrelevant to the Anti-Deficiency Act.
Third, the majority distinguishes United States v. Spearin, 248 U. S. 132 (1918), on the ground that the implied warranty that Justice Brandeis there discussed protects a contractor from "specifications" that, in the majority's words, will "frustrate performance or make it impossible," but does not "extend . . . beyond performance to third-party claims against the contractor." Ante, at 425. Spearin itself does not make this distinction. Nor have subsequent cases. See
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