SAFETY Act integrated into Federal Acquisition Regulation
Brian Finch
Early this November, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the "Councils") released an interim rule (the "Interim Rule") amending the Federal Acquisition Regulation ("FAR") in order to implement the Support Anti-Terrorism By Fostering Effective Technology Act of 2002 (or the "SAFETY Act"). This long-awaited Interim Rule represents a major leap forward for the SAFETY Act program, as now there are uniform rules in place to integrate the SAFETY Act into all federal procurements.
With the release of the Interim Rule, companies that offer products and services designed to deter, defend against, identify, respond to or mitigate acts of terrorism now have a clear set of rules by which they can determine whether their product will receive SAFETY Act protections from the federal government during the procurement process. At the same time, the Interim Rule issued by the Council establishes a decidedly pro-SAFETY Act policy, setting the stage for the broad utilization of the SAFETY Act in upcoming federal procurements.
The Interim Rule covers a broad range of topics, including whether vendors may make a proposal to the federal government contingent upon receipt of SAFETY Act protections, how vendors can apply should a "Block designation" or a "Block certification" be issued by the U.S. Department of Homeland Security ("DHS"), and procedures for issuing "Pre-qualification designation notices".
Most importantly, however, the Interim Rule establishes an overarching policy that is unmistakably pro-SAFETY Act. The Interim Rule sets forth a clear policy preference that federal agencies should consider whether the product or service to be procured is appropriate for SAFETY Act protections and encourages vendors to pursue SAFETY Act protections (including far in advance of any procurement).
More specifically, the Interim Rule directs federal agencies to "review requirements to identify potential technologies that prevent, detect, identify, or deter acts of terrorism or limit the harm such acts might cause, and may be appropriate for SAFETY Act protections." The Interim Rule directs acquisition officials to "consider SAFETY Act issues as early in the acquisition cycle as possible," and directs that when applicable "acquisition officials should include SAFETY Act considerations in all industry outreach efforts including, but not limited to, requests for information, draft requests for proposal, and industry conferences".
The establishment of such strong policies in and of themselves represent a dramatic shift in the utilization of the SAFETY Act. Whereas previously the utilization of the SAFETY Act was a bit ad hoc, the Interim Rule now sets forth undeniably clear requirements to consider the SAFETY Act in essentially any anti-terror related procurement. Moreover, the Interim Rule makes it clear that acquisition officers are to think about how to utilize the SAFETY Act from the very start of the process. This means in essence that the SAFETY Act will from now on be a commonplace part of federal procurements.
The Interim Rule is careful too not to go too far with the SAFETY Act. For instance, the Interim Rule makes it clear that federal agencies may not mandate the holding of SAFETY Act protections as, ultimately, the decision to apply should be left up to the vendor. This is in sharp contrast to some private sector procurements where the customers have demanded that vendors have SAFETY Act protections. In some cases the potential customer will not let the vendor even submit a bid unless they are already SAFETY Act approved. The federal government is clearly avoiding that course of action.
One other important point to note is that the Interim Rule dramatically restricts the circumstances in which a vendor may submit a bid contingent upon receipt of SAFETY Act protections. Under the Interim Rule, contracting officers may authorize offers contingent on receipt of SAFETY Act protections unless a block designation or certification has been issued (those are SAFETY Act approvals that apply presumptively to all products in a very specific set of circumstances), insufficient notice was given to the offerors thereby preventing them from obtaining SAFETY Act protections, and research shows that insufficient competition will occur without the granting of SAFETY Act protections.
With the Interim Rule firmly established, it is more apparent than ever that the SAFETY Act is a liability management tool that will be regularly encountered at the federal government level. Every vendor that might do business with the federal government (and not just DHS) should be fully up to speed on the SAFETY Act and how to take advantage of it. Without such knowledge, vendors will be put in an awkward position when it comes time to manage the details of a procurement.
Brian Finch leads the homeland security practice group at Dickstein Shapiro LLP and has assisted in the preparation of dozens of SAFETY Act applications. Finch can be reached at
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