Subpart 50.2 - Support Anti-terrorism by

Fostering Effective Technologies Act of 2002

Parent topic: Part 50 - Extraordinary Contractual Actions and the safety act

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.