Part 50 - Extraordinary Contractual Actions

and the safety act

50.000 Scope of part.

Subpart 50.1 - Extraordinary Contractual Actions

50.100 Definitions.

50.101 General.

50.101-1 Authority.

50.101-2 Policy.

50.101-3 Records.

50.102 Delegation of and limitations on exercise of authority.

50.102-1 Delegation of authority.

50.102-2 Contract adjustment boards.

50.102-3 Limitations on exercise of authority.

50.103 Contract adjustments.

50.103-1 General.

50.103-2 Types of contract adjustment.

50.103-3 Contract adjustment.

50.103-4 Facts and evidence.

50.103-5 Processing cases.

50.103-6 Disposition.

50.103-7 Contract requirements.

50.104 Residual powers.

50.104-1 Standards for use.

50.104-2 General.

50.104-3 Special procedures for unusually hazardous or nuclear risks.

50.104-4 Contract clause.

Subpart 50.2 - Support Anti-terrorism by Fostering Effective Technologies Act of 2002
50.200 Scope of subpart.

50.201 Definitions.

50.202 Authorities.

50.203 General.

50.204 Policy.

50.205 Procedures.

50.205-1 SAFETY Act Considerations.

50.205-2 Pre-qualification designation notice.

50.205-3 Authorization of offers contingent upon SAFETY Act designation or certification before

contract award.

50.205-4 Authorization of awards made presuming SAFETY Act designation or certification after

contract award.

50.206 Solicitation provisions and contract clause.

Parent topic: Federal Acquisition Regulation

50.000 Scope of part.

This part-

(a)

(1) Prescribes policies and procedures for entering into, amending, or modifying contracts in order

to facilitate the national defense under the extraordinary emergency authority granted by Public

Law 85-804 (50 U. S.C. 1431-1434) and Executive Order 10789, dated November 14, 1958. It does

not cover advance payments (see subpart 32.4); and

(2) Implements indemnification authority granted by Pub. L. 85-804 and paragraph 1 A of E.O.

10789 with respect to any matter that has been, or could be, designated by the Secretary of

Homeland Security as a qualified anti-terrorism technology as defined in the Support Anti-terrorism

by Fostering Effective Technologies Act of 2002 (SAFETY Act); and

(b) Implements SAFETY Act liability protections to promote development and use of anti-terrorism

technologies.

Subpart 50.1 - Extraordinary Contractual Actions

50.100 Definitions.
As used in this partApproving authority means an agency official or contract adjustment board authorized to approve

actions under Pub. L. 85-804 and E.O. 10789.

Secretarial level means a level at or above the level of a deputy assistant agency head, or a contract

adjustment board.

50.101 General.

50.101-1 Authority.

(a) Pub. L. 85-804 empowers the President to authorize agencies exercising functions in connection

with the national defense to enter into, amend, and modify contracts, without regard to other

provisions of law related to making, performing, amending, or modifying contracts, whenever the

President considers that such action would facilitate the national defense.

(b) E.O. 10789 authorizes the heads of the following agencies to exercise the authority conferred by

Pub. L. 85-804 and to delegate it to other officials within the agency: the Government Publishing

Office; the Department of Homeland Security; the Tennessee Valley Authority; the National

Aeronautics and Space Administration; the General Services Administration; the Defense, Army,

Navy, Air Force, Treasury, Interior, Agriculture, Commerce, and Transportation Departments; the

Department of Energy for functions transferred to that Department from other authorized agencies;

and any other agency that may be authorized by the President.

50.101-2 Policy.

(a) The authority conferred by Pub. L. 85-804 may not-

(1) Be used in a manner that encourages carelessness and laxity on the part of persons engaged in

the defense effort; or

(2) Be relied upon when other adequate legal authority exists within the agency.

(b) Actions authorized under Pub. L. 85-804 shall be accomplished as expeditiously as practicable,

consistent with the care, restraint, and exercise of sound judgment appropriate to the use of such

extraordinary authority.

(c) Certain kinds of relief previously available only under Pub. L. 85-804; e.g., rescission or

reformation for mutual mistake, are now available under the authority of 41 U.S.C. chapter 71,

Contract Disputes. In accordance with paragraph (a)(2) of this subsection, part 33 must be followed

in preference to subpart 50.1 for such relief. In case of doubt as to whether part 33 applies, the

contracting officer should seek legal advice.

50.101-3 Records.

Agencies shall maintain complete records of all actions taken under this subpart 50.1. For each
request for relief processed, these records shall include, as a minimum-

(a) The contractor’s request;

(b) All relevant memorandums, correspondence, affidavits, and other pertinent documents;

(c) The Memorandum of Decision (see 50.103-6 and 50.104-2); and

(d) A copy of the contractual document implementing an approved request.

50.102 Delegation of and limitations on exercise of authority.

50.102-1 Delegation of authority.

An agency head may delegate in writing authority under Pub. L. 85-804 and E.O. 10789, subject to

the following limitations:

(a) Authority delegated shall be to a level high enough to ensure uniformity of action.

(b) Authority to approve requests to obligate the Government in excess of $75,000 may not be

delegated below the secretarial level.

(c) Regardless of dollar amount, authority to approve any amendment without consideration that

increases the contract price or unit price may not be delegated below the secretarial level, except in

extraordinary cases or classes of cases when the agency head finds that special circumstances

clearly justify such delegation.

(d) Regardless of dollar amount, authority to indemnify against unusually hazardous or nuclear risks,

including extension of such indemnification to subcontracts, shall be exercised only by the Secretary

or Administrator of the agency concerned, the Public Printer, or the Chairman of the Board of

Directors of the Tennessee Valley Authority (see 50.104-3).

50.102-2 Contract adjustment boards.

An agency head may establish a contract adjustment board with authority to approve, authorize, and

direct appropriate action under this subpart 50.1 and to make all appropriate determinations and

findings. The decisions of the board shall not be subject to appeal; however, the board may

reconsider and modify, correct, or reverse its previous decisions. The board shall determine its own

procedures and have authority to take all action necessary or appropriate to conduct its functions.

50.102-3 Limitations on exercise of authority.

(a) Pub. L. 85-804 is not authority for-

(1) Using a cost-plus-a-percentage-of-cost system of contracting;

(2) Making any contract that violates existing law limiting profit or fees;
(3) Providing for other than full and open competition for award of contracts for supplies or services;

or

(4) Waiving any bid bond, payment bond, performance bond, or other bond required by law.

(b) No contract, amendment, or modification shall be made under Pub. L. 85-804’s authority-

(1) Unless the approving authority finds that the action will facilitate the national defense;

(2) Unless other legal authority within the agency concerned is deemed to be lacking or inadequate;

(3) Except within the limits of the amounts appropriated and the statutory contract authorization

(however, indemnification agreements authorized by an agency head (50.104-3) are not limited to

amounts appropriated or to contract authorization); and

(4) That will obligate the Government for any amount over $35 million unless the Senate and House

Committees on Armed Services are notified in writing of the proposed obligation and 60 days of

continuous session of Congress have passed since the transmittal of such notification. However, this

paragraph (b)(4) does not apply to indemnification agreements authorized under 50.104-3.

(c) No contract shall be amended or modified unless the contractor submits a request before all

obligations (including final payment) under the contract have been discharged. No amendment or

modification shall increase the contract price to an amount higher than the lowest rejected bid of

any responsible bidder, if the contract was negotiated under 14.404-1(f).

(d) No informal commitment shall be formalized unless-

(1) The contractor submits a written request for payment within 6 months after furnishing, or

arranging to furnish, supplies or services in reliance upon the commitment; and

(2) The approving authority finds that, at the time the commitment was made, it was impracticable

to use normal contracting procedures.

(e) The exercise of authority by officials below the secretarial level is subject to the following

additional limitations:

(1) The action shall not-

(i) Release a contractor from performance of an obligation over $75,000;

(ii) Result in an increase in cost to the Government over $75,000;

(iii) Deal with, or directly affect, any matter that has been submitted to the Government

Accountability Office; or

(iv) Involve disposal of Government surplus property.

(2) Mistakes shall not be corrected by an action obligating the Government for over $1,000, unless

the contracting officer receives notice of the mistake before final payment.

(3) The correction of a contract because of a mistake in its making shall not increase the original

contract price to an amount higher than the next lowest responsive offer of a responsible offeror.

(f) No executive department or agency shall exercise the indemnification authority granted under
paragraph 1 A of E.O. 10789 with respect to any supply or service that has been, or could be,

designated by the Secretary of Homeland Security as a qualified anti-terrorism technology unless-

(1) For the Department of Defense, the Secretary of Defense has determined that the exercise of

authority under E.O. 10789 is necessary for the timely and effective conduct of the United States

military or intelligence activities, after consideration of the authority provided under the SAFETY

Act (Subtitle G of title VIII of the Homeland Security Act of 2002, 6 U.S.C. 44 1-444); or

(2) For other departments and agencies that have authority under E.O. 10789-

(i) The Secretary of Homeland Security has advised whether the use of the authority under the

SAFETY Act would be appropriate; and

(ii) The Director of the Office of Management and Budget has approved the exercise of authority

under the Executive order.

50.103 Contract adjustments.

This section prescribes standards and procedures for processing contractors’ requests for contract

adjustment under Pub. L. 85-804 and E.O. 10789.

50.103-1 General.

The fact that losses occur under a contract is not sufficient basis for exercising the authority

conferred by Pub. L. 85-804. Whether appropriate action will facilitate the national defense is a

judgment to be made on the basis of all of the facts of the case. Although it is impossible to predict

or enumerate all the types of cases in which action may be appropriate, examples are included in

50.103-2. Even if all of the factors in any of the examples are present, other considerations may

warrant denying a contractor's request for contract adjustment. The examples are not intended to

exclude other cases in which the approving authority determines that the circumstances warrant

action.

50.103-2 Types of contract adjustment.

(a) Amendments without consideration.

(1) When an actual or threatened loss under a defense contract, however caused, will impair the

productive ability of a contractor whose continued performance on any defense contract or whose

continued operation as a source of supply is found to be essential to the national defense, the

contract may be amended without consideration, but only to the extent necessary to avoid such

impairment to the contractor’s productive ability.

(2) When a contractor suffers a loss (not merely a decrease in anticipated profits) under a defense

contract because of Government action, the character of the action will generally determine whether

any adjustment in the contract will be made, and its extent. When the Government directs its action

primarily at the contractor and acts in its capacity as the other contracting party, the contract may

be adjusted in the interest of fairness. Thus, when Government action, while not creating any
liability on the Government’s part, increases performance cost and results in a loss to the contractor,

fairness may make some adjustment appropriate.

(b) Correcting mistakes.

(1) A contract may be amended or modified to correct or mitigate the effect of a mistake. The

following are examples of mistakes that may make such action appropriate:

(i) A mistake or ambiguity consisting of the failure to express, or express clearly, in a written

contract, the agreement as both parties understood it.

(ii) A contractor’s mistake so obvious that it was or should have been apparent to the contracting

officer.

(iii) A mutual mistake as to a material fact.

(2) Amending contracts to correct mistakes with the least possible delay normally will facilitate the

national defense by expediting the contracting program and assuring contractors that mistakes will

be corrected expeditiously and fairly.

(c) Formalizing informal commitments. Under certain circumstances, informal commitments may be

formalized to permit payment to persons who have taken action without a formal contract; for

example, when a person, responding to an agency official’s written or oral instructions and relying in

good faith upon the official’s apparent authority to issue them, has furnished or arranged to furnish

supplies or services to the agency, or to a defense contractor or subcontractor, without formal

contractual coverage. Formalizing commitments under such circumstances normally will facilitate

the national defense by assuring such persons that they will be treated fairly and paid expeditiously.

50.103-3 Contract adjustment.

(a) Contractor requests. A contractor seeking a contract adjustment shall submit a request in

duplicate to the contracting officer or an authorized representative. The request, normally a letter,

shall state as a minimum-

(1) The precise adjustment requested;

(2) The essential facts, summarized chronologically in narrative form;

(3) The contractor’s conclusions based on these facts, showing, in terms of the considerations set

forth in 50.103-1 and 50.103-2, when the contractor considers itself entitled to the adjustment; and

(4) Whether or not-

(i) All obligations under the contracts involved have been discharged;

(ii) Final payment under the contracts involved has been made;

(iii) Any proceeds from the request will be subject to assignment or other transfer, and to whom; and

(iv) The contractor has sought the same, or a similar or related, adjustment from the Government

Accountability Office or any other part of the Government, or anticipates doing so.
(b) Contractor certification. A contractor seeking a contract adjustment that exceeds the simplified

acquisition threshold shall, at the time the request is submitted, submit a certification by a person

authorized to certify the request on behalf of the contractor that-

(1) The request is made in good faith; and

(2) The supporting data are accurate and complete to the best of that person’s knowledge and belief.

50.103-4 Facts and evidence.

(a) General. When it is appropriate, the contracting officer or other agency official shall request the

contractor to support any request made under 50.103-3(a) with any of the following information:

(1) A brief description of the contracts involved, the dates of execution and amendments, the items

being acquired, the price or prices, the delivery schedules, and any special contract provisions

relevant to the request.

(2) A history of performance indicating when work under the contracts or commitments began, the

progress made to date, an exact statement of the contractor’s remaining obligations, and the

contractor’s expectations regarding completion.

(3) A statement of payments received, due, and yet to be received or to become due, including

advance and progress payments; amounts withheld by the Government; and information as to any

obligations of the Government yet to be performed under the contracts.

(4) A detailed analysis of the request’s monetary elements, including precisely how the actual or

estimated dollar amount was determined and the effect of approval or denial on the contractor’s

profits before Federal income taxes.

(5) A statement of the contractor’s understanding of why the request’s subject matter cannot now,

and could not at the time it arose, be disposed of under the contract terms.

(6) The best supporting evidence available to the contractor, including contemporaneous

memorandums, correspondence, and affidavits.

(7) Relevant financial statements, cost analyses, or other such data, preferably certified by a

certified public accountant, as necessary to support the request’s monetary elements.

(8) A list of persons connected with the contracts who have factual knowledge of the subject matter,

including, when possible, their names, offices or titles, addresses, and telephone numbers.

(9) A statement and evidence of steps taken to reduce losses and claims to a minimum.

(10) Any other relevant statements or evidence that may be required.

(b) Amendments without consideration-essentiality a factor. When a request involves possible

amendment without consideration, and essentiality to the national defense is a factor

(50.103-2(a)(1)), the contractor may be asked to furnish, in addition to the facts and evidence listed

in paragraph (a) of this subsection, any of the following information:

(1) A statement and evidence of the contractor’s original breakdown of estimated costs, including

contingency allowances, and profit.
(2) A statement and evidence of the contractor’s present estimate of total costs under the contracts

involved if it is enabled to complete them, broken down between costs accrued to date and

completion costs, and between costs paid and those owed.

(3) A statement and evidence of the contractor’s estimate of the final price of the contracts, taking

into account all known or contemplated escalation, changes, extras, and the like.

(4) A statement of any claims known or contemplated by the contractor against the Government

involving the contracts, other than those stated in response to paragraph (b)(3) of this subsection.

(5) An estimate of the contractor’s total profit or loss under the contracts if it is enabled to complete

them at the estimated final contract price, broken down between profit or loss to date and

completion profit or loss.

(6) An estimate of the contractor’s total profit or loss from other Government business and all other

sources, from the date of the first contract involved to the estimated completion date of the last

contract involved.

(7) A statement of the amount of any tax refunds to date, and an estimate of those anticipated, for

the period from the date of the first contract involved to the estimated completion date of the last

contract involved.

(8) A detailed statement of efforts the contractor has made to obtain funds from commercial sources

to enable contract completion.

(9) A statement of the minimum amount the contractor needs as an amendment without

consideration to enable contract completion, and the detailed basis for that amount.

(10) An estimate of the time required to complete each contract if the request is granted.

(11) A statement of the factors causing the loss under the contracts involved.

(12) A statement of the course of events anticipated if the request is denied.

(13) Balance sheets, preferably certified by a certified public accountant, (i) for the contractor’s

fiscal year immediately preceding the date of the first contract, (ii) for each subsequent fiscal year,

(iii) as of the request date, and (iv) projected as of the completion date of all the contracts involved

(assuming the contractor is enabled to complete them at the estimated final prices), together with

income statements for annual periods subsequent to the date of the first balance sheet. Balance

sheets and income statements should be both consolidated and broken down by affiliates. They

should show all transactions between the contractor and its affiliates, stockholders, and partners,

including loans to the contractor guaranteed by any stockholder or partner.

(14) A list of all salaries, bonuses, and other compensation paid or furnished to the principal officers

or partners, and of all dividends and other withdrawals, and of all payments to stockholders in any

form since the date of the first contract involved.

(c) Amendments without consideration-essentiality not a factor. When a request involves possible

amendment without consideration because of Government action, and essentiality to the national

defense is not a factor (50.103-2(a)(2)), the contractor may be asked to furnish, in addition to the

facts and evidence listed in paragraph (a) of this subsection, any of the following information:

(1) A clear statement of the precise Government action that the contractor considers to have caused
a loss under the contract, with evidence to support each essential fact.

(2) A statement and evidence of the contractor’s original breakdown of estimated costs, including

contingency allowances, and profit.

(3) The estimated total loss under the contract, with detailed supporting analysis.

(4) The estimated loss resulting specifically from the Government action, with detailed supporting

analysis.

(d) Correcting mistakes. When a request involves possible correction of a mistake (50.103-2(b)), the

contractor may be asked to furnish, in addition to the facts and evidence listed in paragraph (a) of

this subsection, any of the following information:

(1) A statement and evidence of the precise error made, ambiguity existing, or misunderstanding

arising, showing what it consists of, how it occurred, and the intention of the parties.

(2) A statement explaining when the mistake was discovered, when the contracting officer was given

notice of it, and whether this notice was given before completion of work under, or the effective

termination date of, the contract.

(3) An estimate of profit or loss under the contract, with detailed supporting analysis.

(4) An estimate of the increase in cost to the Government resulting from the adjustment requested,

with detailed supporting analysis.

(e) Formalizing informal commitments. When a request involves possible formalizing of an informal

commitment (50.103-2(c)), the contractor may be asked to furnish, in addition to the facts and

evidence listed in paragraph (a) of this subsection, any of the following information:

(1) Copies of any written instructions or assurances (or a sworn statement of any oral instructions or

assurances) given the contractor, and identification of the Government official who gave them.

(2) A statement as to when the contractor furnished or arranged to furnish the supplies or services

involved, and to whom.

(3) Evidence that the contractor relied upon the instructions or assurances, with a full description of

the circumstances that led to this reliance.

(4) Evidence that, when performing the work, the contractor expected to be compensated directly

for it by the Government and did not anticipate recovering the costs in some other way.

(5) A cost breakdown supporting the amount claimed as fair compensation for the work performed.

(6) A statement and evidence of the impracticability of providing, in an appropriate contractual

instrument, for the work performed.

50.103-5 Processing cases.

(a) In response to a contractor request made in accordance with 50.103-3(a), the contracting officer

or an authorized representative shall make a thorough investigation to establish the facts necessary

to decide a given case. Facts and evidence, including signed statements of material facts within the
knowledge of individuals when documentary evidence is lacking, and audits if considered necessary

to establish financial or cost facts, shall be obtained from contractor and Government personnel.

(b) When a case involves matters of interest to more than one Government agency, the interested

agencies should maintain liaison with each other to determine whether joint action should be taken.

(c) When additional funds are required from another agency, the contracting agency may not

approve adjustment requests before receiving advice that the funds will be available. The request for

this advice shall give the contractor’s name, the contract number, the amount of proposed relief, a

brief description of the contract, and the accounting classification or fund citation. If the other

agency makes additional funds available, the agency considering the adjustment request shall be

solely responsible for any action taken on the request.

(d) When essentiality to the national defense is an issue (50.103-2(a)(1)), agencies considering

requests for amendment without consideration involving another agency shall obtain advice on the

issue from the other agency before making the final decision. When this advice is received, the

agency considering the request for amendment without consideration shall be responsible for taking

whatever action is appropriate.

50.103-6 Disposition.

When approving or denying a contractor’s request made in accordance with 50.103-3(a), the

approving authority shall sign and date a Memorandum of Decision containing-

(a) The contractor’s name and address, the contract identification, and the nature of the request;

(b) A concise description of the supplies or services involved;

(c) The decision reached and the actual cost or estimated potential cost involved, if any;

(d) A statement of the circumstances justifying the decision;

(e) Identification of any of the foregoing information classified "Confidential" or higher (instead of

being included in the memorandum, such information may be set forth in a separate classified

document referenced in the memorandum); and

(f) If some adjustment is approved, a statement in substantially the following form: "I find that the

action authorized herein will facilitate the national defense." The case files supporting this statement

will show the derivation and rationale for the dollar amount of the award. When the dollar amount

exceeds the amounts supported by audit or other independent reviews, the approving authority will

further document the rationale for deviating from the recommendation.

50.103-7 Contract requirements.

(a) Pub. L. 85-804 and E.O. 10789 require that every contract entered into, amended, or modified

under this subpart 50.1 shall contain—

(1) A citation of Pub. L. 85-804 and E.O. 10789;

(2) A brief statement of the circumstances justifying the action; and
(3) A recital of the finding that the action will facilitate the national defense.

(b) The authority in 50.101-1(a) shall not be used to omit from contracts, when otherwise required,

the clauses at 52.203-5, Covenant Against Contingent Fees; 52.215-2, Audit and RecordsNegotiation; 52.222-4, Contract Work Hours and Safety Standards-Overtime Compensation;

52.222-6, Construction Wage Rate Requirements; 52.222-10, Compliance With Copeland Act

Requirements; 52.222-20, Contracts for Materials, Supplies, Articles, and Equipment;52.222-26,

Equal Opportunity; and 52.232-23, Assignment of Claims.

50.104 Residual powers.

This section prescribes standards and procedures for exercising residual powers under Pub. L.

85-804. The term "residual powers" includes all authority under Pub. L. 85-804 except-

(a) That covered by section 50.103; and

(b) The authority to make advance payments (see subpart 32.4).

50.104-1 Standards for use.

Subject to the limitations in 50.102-3, residual powers may be used in accordance with the policies

in 50.101-2 when necessary and appropriate, all circumstances considered. In authorizing the

inclusion of the clause at 52.250-1, Indemnification Under Public Law 85-804, in a contract or

subcontract, an agency head may require the indemnified contractor to provide and maintain

financial protection of the type and amount determined appropriate. In deciding whether to approve

use of the indemnification clause, and in determining the type and amount of financial protection the

indemnified contractor is to provide and maintain, an agency head shall consider such factors as

self-insurance, other proof of financial responsibility, workers’ compensation insurance, and the

availability, cost, and terms of private insurance. The approval and determination shall be final.

50.104-2 General.

(a) When approving or denying a proposal for the exercise of residual powers, the approving

authority shall sign and date a Memorandum of Decision containing substantially the same

information called for by 50.103-6.

(b) Every contract entered into, amended, or modified under residual powers shall comply with the

requirements of 50.103-7.

50.104-3 Special procedures for unusually hazardous or nuclear risks.

(a) Indemnification requests.

(1) Contractor requests for the indemnification clause to cover unusually hazardous or nuclear risks

should be submitted to the contracting officer and shall include the following information:
(i) Identification of the contract for which the indemnification clause is requested.

(ii) Identification and definition of the unusually hazardous or nuclear risks for which

indemnification is requested, with a statement indicating how the contractor would be exposed to

them.

(iii) A statement, executed by a corporate official with binding contractual authority, of all insurance

coverage applicable to the risks to be defined in the contract as unusually hazardous or nuclear,

including-

(A) Names of insurance companies, policy numbers, and expiration dates;

(B) A description of the types of insurance provided (including the extent to which the contractor is

self-insured or intends to self-insure), with emphasis on identifying the risks insured against and the

coverage extended to persons or property, or both;

(C) Dollar limits per occurrence and annually, and any other limitation, for relevant segments of the

total insurance coverage;

(D) Deductibles, if any, applicable to losses under the policies;

(E) Any exclusions from coverage under such policies for unusually hazardous or nuclear risks; and

(F) Applicable workers’ compensation insurance coverage.

(iv) The controlling or limiting factors for determining the amount of financial protection the

contractor is to provide and maintain, with information regarding the availability, cost, and terms of

additional insurance or other forms of financial protection.

(v) Whether the contractor’s insurance program has been approved or accepted by any Government

agency; and whether the contractor has an indemnification agreement covering similar risks under

any other Government program, and, if so, a brief description of any limitations.

(vi) If the contractor is a division or subsidiary of a parent corporation-

(A) A statement of any insurance coverage of the parent corporation that bears on the risks for

which the contractor seeks indemnification; and

(B) A description of the precise legal relationship between parent and subsidiary or division.

(2) If the dollar value of the contractor’s insurance coverage varies by 10 percent or more from that

stated in an indemnification request submitted in accordance with paragraph (a)(1) of this

subsection, or if other significant changes in insurance coverage occur after submission and before

approval, the contractor shall immediately submit to the contracting officer a brief description of the

changes.

(b) Action on indemnification requests.

(1) The contracting officer, with assistance from legal counsel and cognizant program office

personnel, shall review the indemnification request and ascertain whether it contains all required

information. If the contracting officer, after considering the facts and evidence, denies the request,

the contracting officer shall notify the contractor promptly of the denial and of the reasons for it. If

recommending approval, the contracting officer shall forward the request (as modified, if necessary,
by negotiation) through channels to the appropriate official specified in 50.102-1(d). The contracting

officer’s submission shall include all information submitted by the contractor and-

(i) All pertinent information regarding the proposed contract or program, including the period of

performance, locations, and facilities involved;

(ii) A definition of the unusually hazardous or nuclear risks involved in the proposed contract or

program, with a statement that the parties have agreed to it;

(iii) A statement by responsible authority that the indemnification action would facilitate the national

defense;

(iv) A statement that the contract will involve unusually hazardous or nuclear risks that could impose

liability upon the contractor in excess of financial protection reasonably available;

(v) A statement that the contractor is complying with applicable Government safety requirements;

(vi) A statement of whether the indemnification should be extended to subcontractors; and

(vii) A description of any significant changes in the contractor's insurance coverage (see

50.104-3(a)(2)) occurring since submission of the indemnification request.

(2) Approval of a request to include the indemnification clause in a contract shall be by a

Memorandum of Decision executed by the appropriate official specified in 50.102-1(d).

(3) When use of the indemnification clause is approved under paragraph (b)(2) of this subsection,

the definition of unusually hazardous or nuclear risks (see paragraph (b)(1)(ii) of this subsection)

shall be incorporated into the contract, along with the clause.

(4) When approval is-

(i) Authorized in the Memorandum of Decision; and

(ii) Justified by the circumstances, the contracting officer may approve the contractor’s written

request to provide for indemnification of subcontractors, using the same procedures as those

required for contractors.

50.104-4 Contract clause.

The contracting officer shall insert the clause at 52.250-1, Indemnification Under Public Law 85-804,

in contracts whenever the approving official determines that the contractor shall be indemnified

against unusually hazardous or nuclear risks (also see 50.104-3(b)(3)). In cost-reimbursement

contracts, the contracting officer shall use the clause with its Alternate I.

Subpart 50.2 - Support Anti-terrorism by Fostering Effective

Technologies Act of 2002
50.200 Scope of subpart.

This subpart implements the Support Anti-terrorism by Fostering Effective Technologies Act of 2002

(SAFETY Act) liability protections to promote development and use of anti-terrorism technologies.

50.201 Definitions.

Act of terrorism means any act determined to have met the following requirements or such other

requirements as defined and specified by the Secretary of Homeland Security:

(1) Is unlawful.

(2) Causes harm, including financial harm, to a person, property, or entity, in the United States, or in

the case of a domestic United States air carrier or a United States-flag vessel (or a vessel based

principally in the United States on which United States income tax is paid and whose insurance

coverage is subject to regulation in the United States), in or outside the United States.

(3) Uses or attempts to use instrumentalities, weapons or other methods designed or intended to

cause mass destruction, injury or other loss to citizens or institutions of the United States.

Block certification means SAFETY Act certification of a technology class that the Department of

Homeland Security (DHS) has determined to be an approved class of approved products for

homeland security.

Block designation means SAFETY Act designation of a technology class that the DHS has determined

to be a Qualified Anti-Terrorism Technology (QATT).

Pre-qualification designation notice means a notice in a procurement solicitation or other publication

by the Government stating that the technology to be procured either affirmatively or presumptively

satisfies the technical criteria necessary to be deemed a qualified anti-terrorism technology. A prequalification designation notice authorizes offeror(s) to submit streamlined SAFETY Act applications

for SAFETY Act designation and receive expedited processing of those applications.

Qualified Anti-Terrorism Technology (QATT) means any technology designed, developed, modified,

procured, or sold for the purpose of preventing, detecting, identifying, or deterring acts of terrorism

or limiting the harm such acts might otherwise cause, for which a SAFETY Act designation has been

issued. For purposes of defining a QATT, technology means any product, equipment, service

(including support services), device, or technology (including information technology) or any

combination of the foregoing. Design services, consulting services, engineering services, software

development services, software integration services, threat assessments, vulnerability studies, and

other analyses relevant to homeland security may be deemed a technology.

SAFETY Act certification means a determination by DHS pursuant to 6 U.S. C. 442(d), as further

delineated in 6 CFR 25.8 and 25.9, that a QATT for which a SAFETY Act designation has been issued

is an approved product for homeland security, i.e., it will perform as intended, conforms to the

seller’s specifications, and is safe for use as intended.

SAFETY Act designation means a determination by DHS pursuant to 6 U.S.C. 441 (b) and 6 U.S.C.

443(a), as further delineated in 6 CFR 25.4, that a particular Anti-Terrorism Technology constitutes

a QATT under the SAFETY Act.
50.202 Authorities.

The following authorities apply:

(a) Support Anti-terrorism by Fostering Effective Technologies Act of 2002 (SAFETY Act), 6 U.S.C.

441-444.

(b) Executive Order 13286 of February 28, 2003, Amendment of Executive Orders, and Other

Actions, in Connection With the Transfer of Certain Functions to the Secretary of Homeland

Security.

(c) Executive Order 10789 of November 14, 1958, Contracting Authority of Government Agencies in

Connection with National Defense Functions.

(d) 6 CFR Part 25.

50.203 General.

(a) As part of the Homeland Security Act of 2002, Pub. L. 107-296, Congress enacted the SAFETY

Act to-

(1) Encourage the development and use of anti-terrorism technologies that will enhance the

protection of the nation; and

(2) Provide risk management and litigation management protections for sellers of QATTs and others

in the supply and distribution chain.

(b) The SAFETY Act’s liability protections are complementary to the Terrorism Risk Insurance Act of

2002.

(c) Questions concerning the SAFETY Act may be directed to DHS Office of SAFETY Act

Implementation (OSAI). Additional information about the SAFETY Act may be found at

http://www.SAFETYAct.gov. Included on this website are block designations and block certifications

granted by DHS.

50.204 Policy.

(a) Agencies should-

(1) Determine whether the technology to be procured is appropriate for SAFETY Act protections

and, if appropriate, formally relay this determination to DHS for purposes of supporting contractor

application(s) for SAFETY Act protections in relation to criteria (b)(viii) of 6 CFR 25.4, Designation of

Qualified Anti-Terrorism Technologies;

(2) Encourage offerors to seek SAFETY Act protections for their offered technologies, even in

advance of the issuance of a solicitation; and

(3) Not mandate SAFETY Act protections for acquisitions because applying for SAFETY Act

protections for a particular technology is the choice of the offeror.
(b) Agencies shall not solicit offers contingent upon SAFETY Act designation or certification

occurring before contract award unless authorized in accordance with 50.205-3.

(c) Agencies shall not solicit offers or award contracts presuming DHS will issue a SAFETY Act

designation or certification after contract award unless authorized in accordance with 50.205-4.

(d) The DHS determination to extend SAFETY Act protections for a particular technology is not a

determination that the technology meets, or fails to meet, the requirements of a solicitation.

50.205 Procedures.

50.205-1 SAFETY Act Considerations.

(a) SAFETY Act applicability. Requiring activities should 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. In questionable cases, the agency

shall consult with DHS. For acquisitions involving such technologies, the requiring activity should

ascertain through discussions with DHS whether a block designation or block certification exists for

the technology being acquired.

(1) If one does exist, the requiring activity should request that the contracting officer notify offerors.

(2) If one does not exist, see 50.205-2, Pre-qualification designation notice.

(b) Early consideration of the SAFETY Act. Acquisition officials shall consider SAFETY Act issues as

early in the acquisition cycle as possible (see 7.105(b)(20)(v)). Normally, this would be at the point

where the required capabilities or performance characteristics are addressed. This is important

because the processing times for issuing determinations on all types of SAFETY Act applications

vary depending on many factors, including the influx of applications to DHS and the technical

complexity of individual applications.

(c) Industry outreach. 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.

(d) Reciprocal waiver of claims. For purposes of 6 CFR 25.5(e), the Government is not a customer

from which a contractor must request a reciprocal waiver of claims.

50.205-2 Pre-qualification designation notice.

(a) Requiring activity responsibilities.

(1) If the requiring activity determines that the technology to be acquired may qualify for SAFETY

Act protection, the requiring activity is responsible for requesting a pre-qualification designation

notice from DHS. Such a request for a pre-qualification designation notice should be made once the

requiring activity has determined that the technology specifications or statement of work are

established and are unlikely to undergo substantive modification. DHS will then determine whether

the technology identified in the request either affirmatively or presumptively satisfies the technical
criteria for SAFETY Act designation. An affirmative determination means the technology described

in the pre-qualification designation notice satisfies the technical criteria for SAFETY Act designation

as a QATT. A presumptive determination means that the technology is a good candidate for SAFETY

Act designation as a QATT. In either case, the notice will authorize offerors to-

(i) Submit a streamlined application for SAFETY Act designation; and

(ii) Receive expedited review of their application for SAFETY Act designation.

(2) The requiring activity shall make requests using the procurement pre-qualification request form

available at http://www.SAFETYAct.gov. The website includes instructions for completing and

submitting the form.

(3) The requiring activity shall provide a copy of the request, as well as a copy of the resulting prequalification designation notice or DHS denial, to the contracting officer.

(b) Contracting officer responsibilities. Upon receipt of the documentation specified in paragraph

(a)(3) of this subsection, the contracting officer shall-

(1) Include in any pre-solicitation notice (subpart 5.2) that a pre-qualification designation notice has

been-

(i) Requested and is under review by DHS;

(ii) Denied by DHS; or

(iii) Issued and a copy will be included with the solicitation; and

(2) Incorporate the pre-qualification designation notice into the solicitation.

50.205-3 Authorization of offers contingent upon SAFETY Act designation or certification

before contract award.

(a) Contracting officers may authorize such contingent offers, only if-

(1) DHS has issued-

(i) For offers contingent upon SAFETY Act designation, a pre-qualification designation notice or a

block designation; or

(ii) For offers contingent upon SAFETY Act certification, a block certification;

(2) To the contracting officer’s knowledge, the Government has not provided advance notice so that

potential offerors could have obtained SAFETY Act designations/ certifications for their offered

technologies before release of any solicitation; and

(3) Market research shows that there will be insufficient competition without SAFETY Act

protections or the subject technology would be sold to the Government only with SAFETY Act

protections.

(b) Contracting officers shall not authorize offers contingent upon obtaining a SAFETY Act

certification (as opposed to a SAFETY Act designation), unless a block certification applies to the
class of technology to be acquired under the solicitation.

50.205-4 Authorization of awards made presuming SAFETY Act designation or certification

after contract award.

(a) When necessary to award a contract prior to DHS issuing SAFETY Act protections, contracting

officers may award contracts presuming that DHS will issue a SAFETY Act designation/certification

to the contractor after contract award only if-

(1) The criteria of 50.205-3(a) are met;

(2) The chief of the contracting office (or other official designated in agency procedures) approves

the action; and

(3) The contracting officer advises DHS of the timelines for potential award and consults DHS as to

when DHS could reasonably complete evaluations of offerors’ applications for SAFETY Act

designations or certifications.

(b) Contracting officers shall not authorize offers presuming that SAFETY Act certification will be

obtained (as opposed to a SAFETY Act designation), unless a block certification applies to the class

of technology to be acquired under the solicitation.

50.206 Solicitation provisions and contract clause.

(a) Insert the provision at 52.250-2, SAFETY Act Coverage Not Applicable, in solicitations if-

(1) The agency consulted with DHS on a questionable case of SAFETY Act applicability to an

acquisition in accordance with 50.205-1(a), and after the consultation, the agency has determined

that SAFETY Act protection is not applicable for the acquisition; or

(2) DHS has denied approval of a pre-qualification designation notice.

(b)

(1) Insert the provision at 52.250-3, SAFETY Act Block Designation/Certification, in a solicitation

when DHS has issued a block designation/certification for the solicited technologies.

(2) Use the provision at 52.250-3 with its Alternate I when contingent offers are authorized in

accordance with 50.205-3.

(3) Use the provision at 52.250-3 with its Alternate II when offers presuming SAFETY Act

designation or certification are authorized in accordance with 50.205-4. If this alternate is used, the

contracting officer may increase the number of days within which offerors must submit their

SAFETY Act designation or certification application.

(c)

(1) Insert the provision at 52.250-4, SAFETY Act Pre-qualification Designation Notice, in a
solicitation for which DHS has issued a pre-qualification designation notice.

(2) Use the provision at 52.250-4 with its Alternate I when contingent offers are authorized in

accordance with 50.205-3.

(3) Use the provision at 52.250-4 with its Alternate II when offers presuming SAFETY Act

designation or certification are authorized in accordance with 50.205-4. If this alternate is used, the

contracting officer may increase the number of days within which offerors must submit their

SAFETY Act designation or certification application.

(d) Insert the clause at 52.250-5, SAFETY Act-Equitable Adjustment-

(1) In the solicitation, if the provision at 52.250-3 or 52.250-4 is used with its Alternate II; and

(2) In any resultant contract, if DHS has not issued SAFETY Act designation or certification to the

successful offeror before contract award.