Overview
FAR Subpart 50.2 implements the Support Anti-terrorism by Fostering Effective Technologies Act of 2002 (SAFETY Act), which provides critical liability and risk management protections to providers of anti-terrorism technologies. The subpart aims to incentivize the development and deployment of life-saving technologies by limiting the legal exposure of "sellers" in the event of an act of terrorism.
Key Rules
- Voluntary Participation: Agencies cannot mandate that a contractor obtain SAFETY Act protections; the decision to apply for and obtain these protections rests solely with the offeror.
- Qualified Anti-Terrorism Technology (QATT): Protection applies to a broad range of "technologies," including products, equipment, software, and services (such as threat assessments and design services) designated by the Department of Homeland Security (DHS).
- Early Integration: Acquisition officials must consider SAFETY Act applicability as early as possible in the acquisition cycle, typically during the requirement definition phase.
- Independence of Evaluation: A DHS determination that a technology qualifies for SAFETY Act protection is independent of the agency’s evaluation of whether that technology meets the specific technical requirements of a solicitation.
- Contingent Offers & Awards:
- Agencies generally cannot solicit offers contingent upon receiving SAFETY Act protection before award unless specific criteria are met (e.g., market research shows insufficient competition otherwise).
- Awards "presuming" post-award designation require approval from the chief of the contracting office and consultation with DHS.
Responsibilities
- Requiring Activity (Program Office):
- Identifies potential technologies that may qualify for SAFETY Act protection.
- Consults with DHS to determine if "block" designations or certifications exist.
- Requests "Pre-qualification Designation Notices" from DHS once specifications are established.
- Provides all DHS-related documentation and notices to the Contracting Officer.
- Contracting Officer (CO):
- Includes necessary SAFETY Act notices in pre-solicitation and solicitation documents.
- Incorporates appropriate FAR provisions (52.250-2 through 52.250-5) based on DHS determinations.
- Coordinates with DHS regarding timelines for evaluation if an award is to be made "presuming" future protection.
- Department of Homeland Security (DHS):
- Sole authority to issue SAFETY Act designations and certifications.
- Reviews streamlined applications triggered by pre-qualification notices.
- Maintains the SAFETYAct.gov resource for block designations.
Practical Implications
In real-world contracting, the SAFETY Act serves as a powerful market-shaping tool. For high-risk requirements—such as airport security screening, cybersecurity for critical infrastructure, or stadium sensors—the lack of liability protection might deter top-tier innovators from bidding due to "bet-the-company" legal risks.
By utilizing Pre-qualification Designation Notices, a Contracting Officer can signal to the industry that the government has already done the legwork with DHS, significantly shortening the timeline for a vendor to receive legal protection. This increases competition and ensures the government has access to the most advanced anti-terrorism tools. Contractors should be aware that even if a technology is "pre-qualified," they must still submit a streamlined application to DHS to actually receive the individual liability benefits.