Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2733 

justification shall be posted within 30 

days after contract award. 

(c) Contracting officers shall carefully 

screen all justifications for contractor 

proprietary data and remove all such 

data, and such references and citations 

as are necessary to protect the 

proprietary data, before making the 

justifications available for public 

inspection. Contracting officers shall 

also be guided by the exemptions to 

disclosure of information contained in 

the Freedom of Information Act (5 

U.S.C. 552) and the prohibitions against 

disclosure in 24.202 in determining 

whether other data should be removed. 

PART 24—PROTECTION OF PRIVACY 

AND FREEDOM OF INFORMATION 

■ 5. Amend section 24.203 by adding 

after the second sentence and at the end 

of paragraph (b) new sentences to read 

as follows: 

24.203 Policy. 

* * * * * 

(b) * * * Other exemptions include 

agency personnel practices, and law 

enforcement. * * * A Freedom of 

Information Act guide and other 

resources are available at the 

Department of Justice website under 

FOIA reference materials: http:// 

www.usdoj.gov/oip. 

[FR Doc. E9–555 Filed 1–14–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 1, 7, 18, 28, 32, 33, 43, 

50, and 52 

[FAC 2005–30; FAR Case 2006–023; Item 

V; Docket 2007–0001; Sequence 8] 

RIN 9000–AK75 

Federal Acquisition Regulation; FAR 

Case 2006–023, SAFETY Act: 

Implementation of DHS Regulations 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have agreed to convert the 

interim rule that published in the 

Federal Register at 72 FR 63027, 

November 7, 2007 to a final rule. The 

final rule amends the Federal 

Acquisition Regulation (FAR) to 

implement the Department of Homeland 

Security (DHS) regulations on the 

SAFETY Act. 

DATES: Effective Date: February 17, 

2009. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Edward N. Chambers, Procurement 

Analyst, at (202) 501–3221 for 

clarification of content. For information 

pertaining to status or publication 

schedules, contact the FAR Secretariat 

at (202) 501–4755. Please cite FAC 

2005–30, FAR case 2006–023. 

SUPPLEMENTARY INFORMATION: 

A. Background 

DoD, GSA, and NASA published an 

interim rule in the Federal Register at 

72 FR 63027, November 7, 2007. Seven 

respondents submitted comments on the 

interim rule. All respondents generally 

supported the concepts of the FAR 

interim rule, but provided suggestions 

to improve clarity and better achieve the 

implementation of the SAFETY Act. 

1. Definitions. 

a. Pre-qualification designation notice 

(50.201 and associated clauses). In the 

definition ‘‘pre-qualification designation 

notice’’ one respondent suggested that 

the word ‘‘successful’’ prior to ‘‘offeror’’ 

be deleted because the interim rule 

allows all offerors to submit streamlined 

SAFETY Act applications, not just the 

successful offeror. 

Response: The Councils have 

accepted this suggestion and the 

definition of ‘‘pre-qualification 

designation notice’’ has been modified 

throughout the final rule. 

b. ‘‘Block designation and ‘‘block 

certification.’’ One respondent was 

concerned that there is no definition of 

the terms ‘‘block designation’’ and block 

certification.’’ 

Response: These definitions were 

embedded within the definition of 

‘‘SAFETY Act designation’’ and 

‘‘SAFETY Act certification.’’ These 

terms are now separately defined, to 

make it easier to locate the definitions. 

2. General (50.203(a)). 

The respondent suggested that 

because SAFETY Act protections extend 

to purchasers and users of technologies 

that the phrase in 50.203(a)(2) be 

amended to reflect this. 

Response: Paragraph (a)(2) of the 

interim rule reads as follows: 

‘‘(2) Provide risk management and 

litigation management protections for sellers 

of QATTs and others in the supply and 

distribution chain.’’ 

Risk management and litigation 

management are addressed in section 

864 and 863 of the SAFETY Act 

respectively, and in 6 CFR 25.5 and 25.7 

of the DHS regulations. The required 

amount of liability insurance purchased 

by the seller must provide protection for 

contractors, subcontractors, suppliers, 

vendors, and customers of the Seller, as 

well as contractors, subcontractors, 

suppliers, and vendors of the customer, 

to the extent of their potential liability 

for involvement in the manufacture, 

qualification, sale, use, or operation of 

the QATT. See Section 864 of the 

SAFETY Act. Accordingly, the phrase, 

‘‘and others in the supply and 

distribution chain,’’ accurately reflects 

this required coverage. Therefore, no 

change has been made to the rule as a 

result of this comment. 

3. Policy (50.204). 

a. Benefits to the Government. The 

respondent thought that because the 

SAFETY Act also benefits the 

Government with respect to its potential 

liability, the requiring activities should 

not only encourage contractors to 

submit SAFETY Act applications, but 

also support these applications. 

Response: The subject of any benefit 

the Government may ultimately enjoy 

with respect to a decreased liability is 

one that cannot be addressed in the 

context of this FAR case. The 

implications are too far reaching and 

would require a thorough analysis of 

many of the Government’s waivers of 

sovereign immunity. However, to the 

extent that one of the criteria for the 

Department of Homeland Security 

(DHS) to determine whether to issue a 

designation is a determination made by 

a Federal, State, or local official that the 

technology is appropriate for 

preventing, detecting, identifying, or 

deterring acts of terrorism or limiting 

the harm such acts might cause, the 

FAR case has been amended to 

specifically reflect this possibility in 

50.204(a) by changing the paragraph to 

read: 

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; 

b. Authorities and responsibilities. 

One respondent wanted to clarify that 

determination of whether the SAFETY 

Act is applicable is within the exclusive 

purview and discretion of DHS. The 

respondent therefore recommended that 

the policy at 50.204(a)(1) should be 

revised to replace ‘‘should’’ with ‘‘shall 

consult with DHS to...’’ 


sroberts on PROD1PC70 with RULES
2734 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

Response: It is not necessary in every 

circumstance to consult with DHS to 

determine whether the SAFETY Act is 

applicable. The procedures make it clear 

that in questionable cases the agency 

shall consult with DHS (50.205–1(a)). 

c. Soliciting contingent offer. Another 

respondent thought that the language of 

50.204(b) concerning not soliciting 

offers contingent upon SAFETY Act 

designation or certification before 

contract award was incongruous with 

normal acquisition procedures to solicit 

offers before award. 

Response: ‘‘Before contract award’’ 

refers to ‘‘SAFETY Act designation or 

certification’’ not to ‘‘shall not solicit 

offers.’’ This can be clarified by adding 

a connecting word as follows: 

‘‘Agencies shall not solicit offers 

contingent upon SAFETY Act award 

designation or certification occurring before 

contract award, unless...’’ 

d. Responsibility to take action. One 

respondent requested that the policy 

should address another responsibility, 

the responsibility to take action once the 

determinations are made. 

Response: The additional language 

requested by the respondent is not 

appropriate in the Policy section. These 

actions are addressed under FAR 50.205 

procedures. 

4. SAFETY Act considerations 

(50.205–1). 

a. SAFETY Act Applicability (50.205– 

1(a)). 

i. Several respondents questioned the 

use of the phrase ‘‘requiring activity’’ 

and some thought it reasonable to 

include a definition for ‘‘requiring 

activities.’’ 

Response: The use of this phrase is 

consistent with other uses in the FAR 

and defining the term is outside the 

scope of this case. 

ii. One respondent wondered if the 

statement that ‘‘Requiring activities 

shall review requirements to identify 

potential technologies’’ means that all 

requirements must be so reviewed. This 

respondent considered that it would be 

helpful if the FAR provided some 

guidance as to the types of requirements 

that must be so reviewed, and points to 

the summary of items at the beginning 

of FAC 2005–021, which provided 

examples of the goods and services to 

which FAR Subpart 50.2 applies. 

Response: The Councils do not agree 

that it is advisable to provide such a list 

in the regulations. Any such list would 

never be complete, and could imply that 

technologies not on the list would not 

be covered by the SAFETY Act. There 

are some limited examples in the 

definition of Qualified Anti-Terrorism 

Technology (QATT), particularly of 

services and analyses that may be 

considered technology. In addition, 

examples of QATT are to be found on 

the SAFETY Act website identified at 

FAR 50.203(c) (e.g., see SAFETY Act 

101 Briefing and Active Procurement 

List). 

iii. One respondent recommended 

that the requiring activity’s 

determination of the existence of a block 

designation or certification through 

discussions with DHS, must be 

mandatory (i.e., change ‘‘should’’ to 

‘‘shall’’). In the same sentence, the 

respondent recommended changing 

‘‘address through preliminary 

discussions’’ to ‘‘ascertain through 

discussions’’. The respondent 

considered that this change will ensure 

that if a block designation or 

certification exists, it will be used in the 

procurement process. 

Response: The Councils do not concur 

with the change from ‘‘should’’ to 

‘‘shall’’ because the FAR does not direct 

requiring activities. 

However, the Councils do concur 

with the change from ‘‘address through 

preliminary discussions’’ to ‘‘ascertain 

through discussions,’’ as being more 

precise. The existence of block 

designation or certification must be 

ascertained at this time, not at some 

time in the future. Therefore, these 

discussions are not preliminary. 

iv. One respondent recommended that 

the discussion not be limited to ‘‘block 

designations’’ or ‘‘block certifications.’’ 

The respondent stated that DHS 

regulations provide coverage for 

‘‘designated technology,’’ ‘‘certified 

technology,’’ and for Developmental 

Testing and Evaluation Designation for 

any technology that is being developed. 

Each of these additional technology 

designations should be ‘‘on the table’’ 

when a Federal agency is considering 

whether a technology is appropriate for 

SAFETY Act coverage. 

Response: The block designations and 

block certifications are checked first 

because they are broader in scope, 

covering a class of technologies. There 

may be a block designation or block 

certification already in effect that can 

cover the planned acquisition. 

Although ‘‘designated technology’’ 

and ‘‘certified technology’’ are specific 

to a particular technology, these 

designations are still ‘‘on the table.’’ 

FAR 50.205–1(a)(2) directs the agencies 

to proceed to 50.205–2, pre-qualification 

designation notice, if a block 

designation or block certification does 

not exist. 

With regard to the ‘‘developmental 

testing and evaluation designation,’’ the 

DHS regulations established this 

category to cover an anti-terrorism 

technology that is being developed, but 

that requires additional developmental 

testing and evaluation (6 CFR 25.4(f)). 

However, the determination to use this 

type of designation is one that DHS may 

apply to a technology at its sole 

discretion. The pre-qualification 

designation notice process does not 

expressly include permitting a 

developmental testing and evaluation 

designation, but rather is limited to 

stating presumptively or affirmatively 

that a technology is a QATT. Therefore, 

while a developmental testing and 

evaluation designation may result from 

any application, the FAR language 

accurately reflects the different 

streamlined application process and 

streamlined review times made 

available to various vendors. 

v. One respondent also suggested that 

the language in 50.205–1(a)(1), ‘‘the 

requiring activity shall inform the 

contracting officer to notify offerors’’, 

should be rewritten as ‘‘the requiring 

activity shall request that the 

contracting officer notify offerors.’’ 

Response: The Councils have 

accepted this suggestion as being 

simpler and clearer. 

b. Early consideration of the SAFETY 

Act. 

i. One respondent recommended a 

cross reference to 7.105(b)(19) be placed 

in 50.205(b). 

Response: The Councils concur. 

ii. The same respondent also 

requested that the regulations should 

provide guidance on the lead time 

required for SAFETY Act coverage 

determinations. 

Response: The regulation states at 

50.205–1(b) that 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. This statement continues 

to be true, and more specific guidance 

is not possible. 

c. Reciprocal waiver of claims (d). 

One respondent supported the 

statement in the rule that the 

Government is not a customer from 

which a contractor must request a 

reciprocal waiver. 

Response: None required. 

5. Prequalification Designation Notice 

(PQDN) (50.205–2). 

a. PQDN after contract award. One 

respondent thought that the PreQualification Designation Notices 

(PQDNs) were not limited to any 

particular time in the acquisition cycle 

and therefore, thought that PQDNs 

should also be available after contract 

award. 

Response: In reviewing the DHS 

regulations on the issuance of PQDNs, 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2735 

there is nothing to indicate that the 

procedure relates to anything other than 

the future procurement of a technology. 

See 6 CFR 25.6(g)(2). Further, the time 

periods of seeking a PQDN and a 

contractor then applying under the 

streamlined rules versus simply having 

the contractor apply for SAFETY Act 

protections would not justify such a 

procedure. It would be far simpler for 

contractors to apply for SAFETY Act 

protections themselves. The period for 

an expedited review is 60 days. The 

review period for a PQDN is also 60 

days. When added together, this is equal 

to the 120 days for an entire SAFETY 

Act application. Of course, DHS may 

issue Block Designations and/or 

Certifications and, therefore, if 

contractors or requiring activities are 

interested in having DHS consider 

whether to issue a Block Designation or 

Certification, then they should write the 

Under Secretary of Science and 

Technology of DHS for this purpose. 

b. Specification changes after PQDN. 

One respondent thought that the FAR 

case needed to be clarified with respect 

to specifications or statements of work 

changing after a PQDN had been issued. 

Response: To the extent, that there 

may be confusion based on the wording 

in the interim rule, 50.205–2(a) has been 

amended to read: 

(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 prequalification 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 ... 

c. Mandatory. With regard to the same 

paragraph (50.205–1(a)(1)), the 

respondent requested that the language 

should be mandatory, changing ‘‘the 

requiring activity is responsible for 

requesting’’ to ‘‘the requiring activity 

shall request.’’ 

Response: The FAR provides 

direction to the contracting officer and 

the contracting chain of command in an 

agency. The requiring activities do not 

look to the FAR for direction. 

d. Streamlined methodology for 

technology already being sold to 

Government. Several respondents felt 

that there should be a streamlined 

methodology to apply and obtain 

SAFETY Act protections if contractors 

are already selling existing technologies 

to the Government. 

Response: The DHS rules for applying 

for SAFETY Act protection do not 

provide for a streamlined methodology 

to apply and obtain SAFETY Act 

protection outside of the acquisition 

process. The FAR cannot provide for 

any additional methodology without 

DHS changing its rules on the manners 

in which to seek SAFETY Act 

protections. It should be emphasized 

though that contractors may, like any 

sellers of technologies, submit an 

application for SAFETY Act protections 

at any time. While the timelines for a 

traditional application are longer, the 

timelines are not expected to exceed an 

additional two months. 

6. Contingent offers (50.205–3 and Alt 

I to 52.250–3 and 52.250–4). 

a. Market research (50.205–3(a)(3)). 

One respondent thought the language in 

50.205–3(a)(3) was unclear because this 

subparagraph did not specifically state 

who would perform the ‘‘market 

research.’’ The respondent thought the 

requirement for market research should 

be deleted because it would be difficult 

for contracting officers to obtain reliable 

information and because market 

research will be subjective and can 

result in widely divergent and 

inequitable implementation of the 

contingent and presumptive SAFETY 

Act clauses. Prior to submission of an 

offer, a company may not be in a 

position to make a categorical decision 

as to whether to supply technology 

without SAFETY Act coverage. 

Response: FAR Part 10 clearly 

requires that the market research be 

performed by the contracting officer. 

Therefore, no change is required to this 

subparagraph. 

It is Government policy to allow 

contingent offers only if 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. With 

regard to subjectivity and widely 

divergent implementation, it is believed 

that the direction in FAR Part 10 

provides enough guidance so as to 

protect against such a situation. 

However, it is recognized, as with any 

process, different employees will pursue 

a matter differently. This cannot be 

avoided. 

b. Block certification. One respondent 

would prefer that the regulations not 

limit contracting officers from 

authorizing offers contingent on 

obtaining a SAFETY Act certification 

unless a block certification applies to 

the solicitation. (Also at 50.205–4(b).) 

This respondent also recommended 

that the wording should be ‘‘applies to 

the technology’’ rather than ‘‘applies to 

the solicitation.’’ 

Response: DHS would not grant 

SAFETY Act certification unless a block 

certification existed, or unless the 

offeror already has applied for a 

SAFETY Act designation. Otherwise, 

DHS would first grant a designation, 

and subsequently grant a certification 

after the technology is proven, or 

simultaneously grant a designation and 

a certification, if requested by the 

applicant. In any event, a SAFETY Act 

designation will be part of any SAFETY 

Act protections conferred to a 

contractor. In virtually every 

circumstance, the Government will 

consider that to be sufficient protection 

to proceed to award. 

The Councils have changed the 

wording at 50.205–3(b) and 50.205–4(b) 

to read ‘‘applies to the class of 

technology to be acquired under the 

solicitation.’’ 

c. No conditions. Several respondents 

suggested, with respect to accepting 

contingent offers, that no conditions or 

very limited conditions should be 

placed on a contracting officer’s ability 

to accept contingent offers. 

Response: Without analyzing the 

long-standing precedent of the 

Government not accepting contingent 

offers of any kind, the conditions placed 

on the acceptance of an offer contingent 

upon an offeror obtaining SAFETY Act 

designation or certification are very 

reasonable. The dual nature of the 

SAFETY Act application processes and 

the source selection processes makes it 

inherently risky for the Government to 

accept contingent offers. However, in 

light of the importance of using the 

SAFETY Act effectively, it was deemed 

worthwhile to accept the risk of 

permitting contingent offers, but only if 

certain conditions applied. Accordingly, 

this case had to mitigate the 

Government’s risk in allowing 

contingent offers by including such 

conditions. 

d. Right of the Government to award. 

Several respondents were concerned 

that paragraphs (f)(2) and (f)(3) of 

Alternate I to 52.250–3 and 50.250–4 are 

in conflict with each other, or at best, 

unclear. 

Response: The Councils have 

rewritten paragraphs (f)(2) and (f)(3) to 

clarify that the right of the Government 

to award prior to resolution of the 

offeror’s application for SAFETY Act 

designation would be an award on 

another offer, not the contingent offer. 

7. Provision prescriptions (50.206). 

a. 52.250–2, SAFETY Act Coverage 

Not Applicable. 

i. One respondent recommended 

clarifying the coverage in FAR 

50.206(a)(2) by adding before the period 

in the sentence the following phrase: 

‘‘and no block designation or block 


sroberts on PROD1PC70 with RULES
2736 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

certification applies to the technology to 

be acquired. See 50.205–1(a).’’ 

Response: It would not be possible to 

get to this point if there were a block 

designation or block certification. The 

first consideration to be checked under 

the procedures at FAR 50.205–1(a) is 

whether or not there is a block 

designation or block certification. It is 

only if one does not exist that the 

agency would enter into discussions 

with DHS as to whether this technology 

might be a good candidate for a PQDN. 

ii. The respondent also considered 

this clause prescription to be unclear, 

questioning whether 52.250–2 would be 

included if the agency based its 

determination of non-applicability of 

the SAFETY Act on its own, without 

DHS consultation, and wanting the FAR 

to make this clear. The respondent also 

reiterates that inclusion of a list of 

examples of items to which the SAFETY 

Act may be applicable would be helpful 

in determining whether to include the 

provision in the solicitation. 

Response: The Councils consider that 

the FAR has made it very clear that this 

clause would only be used after 

consultation with DHS—either as 

specified in FAR 50.206(a)(1) or (a)(2). 

As stated in section 4.a, there are 

various sources of examples of products 

that may be suitable for SAFETY Act 

protection. However, whenever there is 

any possibility of applicability, DHS 

must be consulted. 

b. 52.250–3, SAFETY Act Block 

Designation/ Certification. One 

respondent stated that it would be 

helpful to provide information on how 

to ascertain whether or not DHS has 

issued a block designation or 

certification. 

Response: When DHS grants a block 

designation or block certification, it will 

be listed on the SAFETY Act website 

(see 50.203(c)). Even though there are 

currently no block designations or 

certifications, DHS has been requested 

to provide a place on the website now, 

so that it can be verified that there are 

currently no block designations or block 

certifications. The website is currently 

operational. 

c. 52.250–3 and -4, Alternate II. One 

respondent recommended revision of 

50.206(b)(3) and (c)(3) so that 

contracting officers can only increase 

the 15 day time period for submission 

of SAFETY Act applications, not 

decrease it. For some companies, it may 

not be feasible to submit an application 

in less than 15 days. 

Response: The Councils concur and 

have revised the text accordingly. 

8. ‘‘SAFETY Act Coverage not 

applicable’’ (52.250–2). 

Two respondents thought that this 

provision should be eliminated. One 

respondent thought that the provision at 

52.250–2 could lead to unintended 

consequences by not specifically 

limiting the provision to the products or 

services being acquired under the 

solicitation. The respondent felt that the 

wording of the provision might lead 

potential SAFETY Act applicants to 

believe that their technologies would 

never be appropriate for SAFETY Act 

protection. The respondent believed 

that this provision conflicts with the 

SAFETY Act, which confers exclusive 

authority on DHS to determine whether 

SAFETY Act application should be 

approved or denied. Another 

respondent stated that an offeror should 

still be precluded from seeking SAFETY 

Act coverage. If the provision is not 

removed, the respondent suggested 

narrowing of the applicability of the 

statements of inapplicability. 

Response: Offerors should be 

informed if DHS has advised the agency 

that the SAFETY Act is not applicable 

or has denied approval of a prequalification designation notice. 

However, to the extent that the wording 

of the provision might cause some 

confusion, the Councils have reworded 

the provision as follows: 

‘‘The Government has determined that for 

purposes of this solicitation the product(s) or 

service(s) being acquired by this action are 

neither presumptively nor actually entitled to 

a pre-determination that the products or 

services are qualified anti-terrorism 

technologies as that term is defined by the 

Support Anti-terrorism by Fostering Effective 

Technologies Act of 2002 (SAFETY Act), 6 

U.S.C. 441–444. This determination does not 

prevent sellers of technologies from applying 

for SAFETY Act protections in other 

contexts. Proposals in which either 

acceptance or pricing is made contingent 

upon SAFETY Act designation as a qualified 

anti-terrorism technology or SAFETY Act 

certification as an approved product for 

homeland security of the proposed product 

or service will not be considered for award. 

See Federal Acquisition Regulation subpart 

50.2.’’ 

9. SAFETY Act Prequalification 

Designation Notice (52.250–4). One 

respondent suggested that the language 

in 52.250–4(d) be amended to more 

accurately reflect the difference between 

a determination granting a SAFETY Act 

application and solicitation 

specifications. 

Response: The language in 52.250– 

4(d) has been amended to more 

accurately reflect these differences. This 

amended language is set forth as 

follows: 

(d) All determinations by DHS are based on 

factors set forth in the SAFETY Act, and its 

implementing regulations. A determination 

by DHS to issue a SAFETY Act designation, 

or not to issue a SAFETY Act designation for 

a particular technology as a QATT is not a 

determination that the technology meets, or 

fails to meet, the requirements of any 

solicitation issued by any Federal, state, 

local, or tribal governments. Determinations 

by DHS with respect to whether to issue a 

SAFETY Act designation for technologies 

submitted for DHS review are based on the 

factors identified in 6 CFR Section 25.4(b). 

10. Alternate II to 52.250–3 and 

52.250–4. 

a. Insurance requirements and ‘‘good 

faith’’. One respondent suggested that 

the contractor should have the 

flexibility to negotiate the insurance 

requirements based on DHS’s grant of a 

designation or certification. 

One respondent wanted the insurance 

requirement in the FAR removed for a 

different reason, as well as the 

requirement that the offeror pursues its 

application in ‘‘good faith.’’ The 

respondent is concerned that DHS has 

the exclusive statutory and regulatory 

authority for implementing the SAFETY 

Act, including establishment and 

enforcement of requirements for 

securing designation or certification, 

and provides consequences if the 

company does not agree to the 

insurance requirements. Furthermore, 

only DHS can address the question of 

whether a seller is pursuing an 

application in ‘‘good faith.’’ 

Response: The respondent’s comment 

cannot be addressed through regulations 

in the FAR. The insurance required by 

DHS is based in statute and the 

implementing DHS regulations. Any 

flexibility with regard to DHS’s required 

amounts of insurance is a part of DHS’s 

analysis when reviewing a particular 

SAFETY Act application and is not a 

subject of negotiation during a contract 

award. 

Although the Councils concur that 

DHS is the agency that imposes the 

insurance requirements and can 

determine if an application is being 

pursued in good faith, nevertheless, it 

would be irresponsible to award a 

contract to an offeror with a 

presumption that designation will be 

received, if these conditions are not met. 

b. Limited scope of SAFETY Act 

applications. Paragraph (f)(2) of 

Alternate II to 52.250–3 and 52.250–4 

requires the offeror to file a SAFETY Act 

designation (or SAFETY Act 

certification) application, limited to the 

scope of the applicable block 

designation (or certification) or prequalification designation notice, in 

order to be eligible for award. The 

respondent was concerned that this 

limitation could have harsh results, 

precluding award where an offeror’s 

technology may provide a more robust 

solution than definitively required. The 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2737 

respondent considered that the potential 

exclusion of technologies outweighs the 

need to expedite the procurement 

process. 

Response: Alternate II puts the 

Government in the unusually risky 

position of awarding a contract 

presuming that SAFETY Act coverage 

will be granted after award, and 

agreeing to negotiate an equitable 

adjustment if that does not occur. The 

Government only agrees to this alternate 

when certain conditions are met, 

including the fact that DHS has already 

issued a block designation or a block 

certification, or a pre-qualification 

designation notice for the solicited 

technology. Considering the risk 

involved in these circumstances, the 

Government cannot afford the 

additional risk that would be generated 

if the offeror then proposes a technology 

that is outside or beyond the scope of 

the technologies that have been already 

block designated or certified by DHS or 

reviewed and either affirmatively or 

presumptively endorsed by DHS as 

technologies that meet the criteria of the 

SAFETY Act. Without these assurances 

in advance, the Government cannot 

afford the risk of presuming that 

SAFETY Act designation or certification 

will be granted after contract award. 

c. Before or after award. One 

respondent questioned why the clause 

at FAR 52.250–4, Alternate II, paragraph 

(f)(1) addresses submission of proposals 

presuming SAFETY Act coverage 

‘‘before or after’’ award, but the heading 

at 50.205–4 states ‘‘presuming SAFETY 

Act designation or certification after 

contract award.’’ 

Response: At the time proposals are 

submitted, it is not yet known if 

SAFETY Act coverage will be received 

before or after award. If SAFETY Act 

coverage is received before award, there 

is no issue. However, if award must be 

made and SAFETY Act coverage has not 

yet been granted, then the special 

conditions must apply because award 

must be made based on the presumption 

that SAFETY Act coverage will be 

granted after award. 

11. SAFETY Act—Equitable 

Adjustment (52.250–5). 

a. Several respondents suggested that 

as part of the equitable adjustment 

clause at 52.250–5 the contractor should 

be allowed to stop work unilaterally. 

Response: This suggestion is contrary 

to long standing Government 

procurement law and procedures and 

therefore, will not be considered further 

as part of this case. The contractor is not 

forced to submit an offer. 

b. One respondent had a concern that 

under Alternate II, award can be made 

and delivery required, prior to receipt of 

SAFETY Act coverage. The respondent 

suggested modification of 52.250–5 to 

allow delayed delivery, without penalty, 

until SAFETY Act coverage is granted. 

Response: This suggestion is 

inconsistent with the reasons for using 

this Alternate. The reason for 

proceeding to award under this alternate 

is based on a presumption of receiving 

SAFETY Act coverage after award. 

Therefore, the risk would have to be 

weighed against the urgency to award a 

contract. If delay would be acceptable, 

then there is no need to accept the risk 

of awarding a contract based on a 

contingency. In this case, it would be 

better to use Alternate I instead of 

Alternate II, and not make the award 

until the issue of SAFETY Act coverage 

is resolved. 

c. One respondent wanted 

clarification of the meaning of ‘‘a 

dispute in accordance with the 

‘‘Disputes’’ clause of this contract.’’ 

Response: The Councils consider that 

‘‘in accordance with the ‘Disputes’ 

clause of this contract’’ in paragraph 

(d)(3) of the clause is sufficiently clear. 

12. Comments on Subpart 50.1. 

a. One respondent made the statement 

that the changes in FAR 50.102–3 to the 

procedures for an Agency to exercise the 

authority under paragraph 1A of E.O. 

10789 would reduce the number of 

indemnifications granted. 

Response: This may well be true. 

However, these procedures 

implemented as part of this rule reflect 

the transfer and delegation of certain 

functions to, and other responsibilities 

vested in, the Secretary of DHS, which 

stem directly from Executive Order 

13286 and therefore, cannot be changed 

by this case. 

b. The respondent also commented on 

other sections in Subpart 50.1. 

Response: The interim rule 

republished existing language because 

of the massive renumbering of the 

sections. Renumbering is not a 

substantive change. The intention of 

this rulemaking was to take comments 

solely relating to the Safety Act. 

Therefore, comments on sections 

containing existing language where only 

the numbering was changed are outside 

the scope of this case. 

13. SAFETY Act Block Designation/ 

Certification (52.250–3). Two 

respondents suggested that the SAFETY 

Act Certification is not a certification 

provided by the contractor and thus the 

provisions of the case should be placed 

in Section L of contracts and not Section 

K. 

Response: This comment is accepted 

and the appropriate changes will be 

made in the clause matrix. A SAFETY 

Act Certification is a certification issued 

by DHS, not by the offerors. 

This is not a significant regulatory 

action and, therefore, was not subject to 

review under Section 6(b) of Executive 

Order 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

B. Regulatory Flexibility Act 

The Department of Defense, the 

General Services Administration, and 

the National Aeronautics and Space 

Administration certify that this final 

rule will not have a significant 

economic impact on a substantial 

number of small entities within the 

meaning of the Regulatory Flexibility 

Act, 5 U.S.C. 601, et seq., because this 

rule imposes no burdens on businesses. 

Instead, it allows businesses to more 

easily take advantage of a Department of 

Homeland Security regulation 

published June 8, 2006, at 6 CFR part 

25. The Department of Homeland 

Security certified in their rule that there 

would be no significant impact on a 

substantial number of small entities. 

The Councils did not receive any 

comments on the Regulatory Flexibility 

Act or a perceived burden on small 

business. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply. These changes to the FAR do 

not impose additional information 

collection requirements to the 

paperwork burden previously approved 

under OMB Control Numbers 1640– 

0001 through 1640–0006, under 

applications made to OMB by the 

Department of Homeland Security. 

List of Subjects in 48 CFR Parts 1, 7, 18, 

28, 32, 33, 43, 50, and 52 

Government procurement. 

Dated: December 24, 2008. 

Edward Loeb, 

Acting Director, Office of Acquisition Policy. 

■ Interim Rule Adopted as Final With 

Changes 

■ Accordingly, the interim rule 

amending 48 CFR parts 1, 7, 18, 28, 32, 

33, 43, 50, and 52 which was published 

in the Federal Register at 72 FR 63027 

on November 7, 2007, is adopted as a 

final rule with the following changes: 

■ 1. The authority citation for 48 CFR 

parts 1, 7, 18, 28, 32, 33, 43, 50, and 52 

continues to read as follows: 

Authority: 40 U.S.C. 121(c); 10 U.S.C. 

chapter 137; and 42 U.S.C. 2473(c). 


sroberts on PROD1PC70 with RULES
2738 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

PART 50—EXTRAORDINARY 

CONTRACTUAL ACTIONS AND THE 

SAFETY ACT 

■ 2. Amend section 50.201 by— 

■ a. Adding, in alphabetical order, the 

definitions ‘‘Block certification’’ and 

‘‘Block designation’’; 

■ b. Amending the definition ‘‘Prequalification designation notice’’ by 

removing the word ‘‘successful’’; and 

■ c. Revising the definitions ‘‘SAFETY 

Act certification’’ and ‘‘SAFETY Act 

designation’’. 

■ The added and revised text reads as 

follows: 

50.201 Definitions. 

* * * * * 

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). 

* * * * * 

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. 

■ 3. Amend section 50.203 by adding a 

sentence to the end of paragraph (c) to 

read as follows: 

50.203 General. 

* * * * * 

(c) * * * Included on this website are 

block designations and block 

certifications granted by DHS. 

■ 4. Amend section 50.204 by revising 

paragraph (a)(1); and amending 

paragraph (b) by removing the word 

‘‘certification’’ and adding ‘‘certification 

occurring’’ in its place. The revised text 

reads as follows: 

50.204 Policy. 

(a) * * * 

(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; 

* * * * * 

■ 5. Amend section 50.205–1 by 

revising the introductory text of 

paragraph (a) and paragraph (a)(1); and 

amending paragraph (b) by removing the 

word ‘‘possible’’ and adding ‘‘possible 

(see FAR 7.105(b)(19)(v))’’ in its place. 

The revised text reads as follows: 

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. 

* * * * * 

■ 6. Amend section 50.205–2 by adding 

a new sentence after the first sentence 

in paragraph (a)(1) to read as follows: 

50.205–2 Pre-qualification designation 

notice. 

(a)(1) * * * Such a request for a prequalification 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. * * * 

* * * * * 

■ 7. Amend section 50.205–3 by 

revising paragraph (b) to read as follows: 

50.205–3 Authorization of offers 

contingent upon SAFETY Act designation 

or certification before contract award. 

* * * * * 

(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. 

■ 8. Amend section 50.205–4 by 

revising paragraph (b) to read as follows: 

50.205–4 Authorization of awards made 

presuming SAFETY Act designation or 

certification after contract award. 

* * * * * 

(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 [Amended] 

■ 9. Amend section 50.206 in 

paragraphs (b)(3) and (c)(3) by removing 

the word ‘‘alter’’ and adding the word 

‘‘increase’’ in its place. 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 10. Amend section 52.250–2 by 

revising the date of the provision and 

the provision to read as follows: 

52.250–2 SAFETY Act Coverage Not 

Applicable. 

* * * * * 

SAFETY ACT COVERAGE NOT 

APPLICABLE (FEB 2009) 

The Government has determined that for 

purposes of this solicitation the product(s) or 

service(s) being acquired by this action are 

neither presumptively nor actually entitled to 

a pre-determination that the products or 

services are qualified anti-terrorism 

technologies as that term is defined by the 

Support Anti-terrorism by Fostering Effective 

Technologies Act of 2002 (SAFETY Act), 6 

U.S.C. 441–444. This determination does not 

prevent sellers of technologies from applying 

for SAFETY Act protections in other 

contexts. Proposals in which either 

acceptance or pricing is made contingent 

upon SAFETY Act designation as a qualified 

anti-terrorism technology or SAFETY Act 

certification as an approved product for 

homeland security of the proposed product 

or service will not be considered for award. 

See Federal Acquisition Regulation subpart 

50.2. 

(End of provision) 

■ 11. Amend section 52.250–3 by— 

■ a. Revising the date of the provision; 

■ b. In paragraph (a) by— 

■ 1. Adding, in alphabetical order, the 

definitions ‘‘Block certification’’ and 

‘‘Block designation’’; and 

■ 2. Revising the definitions ‘‘SAFETY 

Act certification’’ and ‘‘SAFETY Act 

designation’’; 

■ c. Revising paragraph (d); 

■ d. Amending paragraph (e) by 

removing the word ‘‘room’’ and adding 

the word ‘‘Room’’ in its place; 

■ e. In Alternate I by revising the date 

of the alternate and paragraphs (f)(2) 

and (f)(3); and 

■ f. In Alternate II by revising the date 

of the alternate; and amending 

paragraph (f)(2)(iii) by removing the 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2739 

word ‘‘any’’ and adding ‘‘the offeror’s’’ 

in its place. 

■ The added and revised text reads as 

follows: 

52.250–3 SAFETY Act Block Designation/ 

Certification. 

* * * * * 

SAFETY ACT BLOCK DESIGNATION/ 

CERTIFICATION (FEB 2009) 

(a) * * * 

* * * * * 

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 AntiTerrorism Technology (QATT). 

* * * * * 

SAFETY Act certification means a 

determination by DHS pursuant to 6 U.S.C. 

442(d), as further delineated in 6 CFR 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. 

* * * * * 

(d) All determinations by DHS are based on 

factors set forth in the SAFETY Act and its 

implementing regulations. A determination 

by DHS to issue a SAFETY Act designation, 

or not to issue a SAFETY Act designation for 

a particular technology as a QATT is not a 

determination that the technology meets, or 

fails to meet, the requirements of any 

solicitation issued by any Federal, State, 

local or tribal governments. Determinations 

by DHS with respect to whether to issue a 

SAFETY Act designation for technologies 

submitted for DHS review are based on the 

factors identified in 6 CFR 25.4(b). 

* * * * * 

Alternate I (FEB 2009). * * * 

(f)(1) * * * 

(2) If an offer is submitted contingent upon 

receipt of SAFETY Act designation (or 

SAFETY Act certification, if a block 

certification exists) prior to contract award, 

then the Government may not award a 

contract based on such offer unless the 

offeror demonstrates prior to award that DHS 

has issued a SAFETY Act designation (or 

SAFETY Act certification, if a block 

certification exists) for the offeror’s 

technology. 

(3) The Government reserves the right to 

award the contract based on a noncontingent 

offer, prior to DHS resolution of the offeror’s 

application for SAFETY Act designation (or 

SAFETY Act certification, if a block 

certification exists). 

Alternate II (FEB 2009). * * * 

* * * * * 

■ 12. Amend section 52.250–4 by— 

■ a. Revising the date of the provision; 

■ b. In paragraph (a) by— 

■ 1. Adding, in alphabetical order, the 

definitions ‘‘Block certification’’ and 

‘‘Block designation’’; 

■ 2. Removing from the definition ‘‘Prequalification designation notice’’ the 

word ‘‘successful’’; and 

■ 3. Revising the definitions ‘‘SAFETY 

Act certification’’ and ‘‘SAFETY Act 

designation’’; 

■ c. Revising paragraph (d); 

■ d. In Alternate I by revising the date 

of the alternate and paragraphs (f)(2) 

and (f)(3); and 

■ e. In Alternate II by revising the date 

of the alternate; and amending 

paragraph (f)(2)(iii) by removing the 

word ‘‘any’’ and adding ‘‘the offeror’s’’ 

in its place. 

■ The added and revised text reads as 

follows: 

52.250–4 SAFETY Act Pre-qualification 

Designation Notice. 

* * * * * 

SAFETY ACT PRE-QUALIFICATION 

DESIGNATION NOTICE (FEB 2009) 

(a) * * * 

* * * * * 

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 AntiTerrorism Technology (QATT). 

* * * * * 

SAFETY Act certification means a 

determination by DHS pursuant to 6 U.S.C. 

442(d), as further delineated in 6 CFR 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. 

* * * * * 

(d) All determinations by DHS are based on 

factors set forth in the SAFETY Act and its 

implementing regulations. A determination 

by DHS to issue a SAFETY Act designation, 

or not to issue a SAFETY Act designation for 

a particular Technology as a QATT is not a 

determination that the Technology meets, or 

fails to meet, the requirements of any 

solicitation issued by any Federal, State, 

local or tribal governments. Determinations 

by DHS with respect to whether to issue a 

SAFETY Act designation for Technologies 

submitted for DHS review are based on the 

factors identified in 6 CFR 25.4(b). 

* * * * * 

Alternate I (FEB 2009). * * * 

(f)(1) * * * 

(2) If an offer is submitted contingent upon 

receipt of SAFETY Act designation prior to 

contract award, then the Government may 

not award a contract based on such offer 

unless the offeror demonstrates prior to 

award that DHS has issued a SAFETY Act 

designation for the offeror’s technology. 

(3) The Government reserves the right to 

award the contract based on a noncontingent 

offer, prior to DHS resolution of the offeror’s 

application for SAFETY Act designation. 

Alternate II (FEB 2009). * * * 

* * * * * 

■ 13. Amend section 52.250–5 by— 

■ a. Revising the date of the clause; 

■ b. In paragraph (a) by— 

■ 1. Adding the definitions ‘‘Block 

certification’’ and ‘‘Block designation’’ 

in alphabetical order; and 

■ 2. Revising the definitions ‘‘SAFETY 

Act certification’’ and ‘‘SAFETY Act 

designation’’. 

■ The added and revised text reads as 

follows: 

52.250–5 SAFETY Act—Equitable 

Adjustment. 

* * * * * 

SAFETY ACT—EQUITABLE 

ADJUSTMENT (FEB 2009) 

(a) * * * 

* * * * * 

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 AntiTerrorism Technology (QATT). 

* * * * * 

SAFETY Act certification means a 

determination by DHS pursuant to 6 U.S.C. 

442(d), as further delineated in 6 CFR 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. 

* * * * * 

[FR Doc. E9–577 Filed 1–14–09; 8:45 am] 

BILLING CODE 6820–EP–S 


sroberts on PROD1PC70 with RULES