In the unusual case of Lockheed v. Lockheed, Idaho Federal District Judge B. Lynn Winmill decided that despite the risks associated with the cleanup requirements, a Lockheed Martin subsidiary is bound by a 1994 fixed-price nuclear cleanup subcontract (known as the Pit 9 subcontract) at DOE's Idaho National Engineering and Environmental Laboratory.

This decision underscores the need to fully assess risk shifting provisions in contracts and subcontracts before bidding, including, as a threshold matter, the basic contract type. In this regard, it is well established that fixed price contracts generally put cost overrun risk on the contractor while cost reimbursable contracts generally allocate such risk to the government (or higher tier prime contractor, as the case may be). However, even in cost reimbursable efforts, clauses or provisions requiring the contractor to guarantee performance of the work or that cap or limit costs or categories of costs may shift the risk or categories of risk back to the contractor. Depending on the allocation of risk in the solicitation, contractors must be satisfied they can fully perform at their proposed price and/or that conflicting obligations of the solicitation do not unfairly shift risk to a contractor that will only be reimbursed at cost.