Overview
This section outlines the federal policy for implementing the SAFETY Act in acquisitions, emphasizing that while agencies should encourage contractors to seek liability protections, the decision to apply remains strictly with the offeror. It establishes boundaries to ensure that the DHS designation process does not improperly interfere with or dictate the outcome of the federal procurement process.
Key Rules
- Agency Support: Agencies are responsible for determining if a technology is appropriate for SAFETY Act protections and relaying that determination to the Department of Homeland Security (DHS).
- Voluntary Participation: Agencies may encourage offerors to seek protections but are expressly prohibited from mandating SAFETY Act protections as a requirement for the acquisition.
- Solicitation Constraints: Agencies cannot make a contract award contingent upon the offeror receiving SAFETY Act designation or certification before the award, nor can they presume such protections will be granted after the award, unless specific regulatory authorizations are met.
- Independent Evaluation: A DHS determination to grant SAFETY Act protections is independent of the agency’s technical evaluation; it does not signify that the technology meets the specific requirements of a solicitation.
Practical Implications
- Contractors have the autonomy to decide whether the cost and effort of seeking SAFETY Act liability protections are worthwhile for a specific bid without fearing disqualification for opting out.
- Contracting Officers must ensure that technical evaluations are based solely on solicitation criteria, as a "safe" or "certified" status from DHS does not guarantee that a product is technically acceptable for the government's specific needs.