a. General Information.
(1) The Support Anti-Terrorism by Fostering Effective Technologies (SAFETY) Act, 6 U.S.C. 441-444, establishes a program under which a product, service, technology, or other matter may be designated by the Department of Homeland Security (DHS) as a Qualified Anti-Terrorism Technology (QATT). The SAFETY Act specifically defines a QATT as “any product, equipment, service (including support services), device, or technology (including information technology) designed, developed, modified, or procured for the specific purpose of preventing, detecting, identifying, or deterring acts of terrorism or limiting the harm such acts might otherwise cause.” The statute provides sellers of QATTs with significant legal protections against third-party products liability lawsuits.
(2) The SAFETY Act is administered by DHS. The DHS regulations implementing this statute are found at 68 Federal Register 59684 (October 16, 2003) and 6 CFR 25.1-25.9. Additional information about the SAFETY Act is found on the DHS internet site at: https://www.safetyact.gov.
(3) Contracting officers and program managers should encourage offerors and contractors to contact the DHS for additional information about the SAFETY Act, and, in appropriate cases, to submit an application to the DHS requesting that their product, service, or technology be designated as a QATT. Because the DHS may require considerable lead time to process an applicant’s request, all prospective offerors should be encouraged to apply for QATT designation as early as practicable in the acquisition planning process.
b. Relationship of the SAFETY Act to Indemnification Under Public Law 85-804.
(1) Eligibility for a SAFETY Act designation does not preclude the granting of indemnification under Public Law 85-804. The SAFETY Act’s liability protections, however, were designed to substantially reduce the need for the United States to provide indemnification to the sellers of anti-terrorism technologies.
(2) In recognition of the close relationship between the SAFETY Act and indemnification authority, Executive Order (E.O.) 10789, governing the indemnification process, has been amended to require all Federal agencies, including the Department of Defense and the Military Departments, to follow certain procedures to ensure that the potential applicability of the SAFETY Act is considered before any indemnification is granted for an anti-terrorism technology. Section 25(a) of E.O. 10789 provides that the Department of Defense (to include the Department of the Army) may not approve indemnification with respect to any matter that has been or could be designated by the Secretary of Homeland Security as a QATT, unless the Secretary of Defense has, after consideration of the authority provided by the SAFETY Act, determined that indemnification is necessary for the timely and effective conduct of Unites States military or intelligence activities. By memorandum dated August 23, 2004, the Deputy Secretary of Defense delegated the authority and assigned the responsibility to make such determinations to the Secretary of the Army. Additional delegations of this authority are not authorized. [AFARS Revision # 12, dated November 30, 2004]
