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42 Procurement Law. 1 (2006-2007)

handle is hein.journals/procurlw42 and id is 1 raw text is: e@ Fina SAFETY Act Rule Resolves Some Questions, Generates Others, and Creates Important Procurement Linkage to the SAFETY Act By JOHN J. PAVICK, JR. AND DIsmAs N. LOCARiA Dismas N. Locaria This summer the Department of Homeland Security (DHS) issued the final rule implementing the SAFETY Act' and a revised SAFETY Act Application Kit (here- inafter referred to as the revised application kit)., In these long awaited documents, the department clarified a number of open issues, but in so doing generated several new questions. Significantly, the preamble to the final rule provides insight into the department's thought processes concerning the act and its implementing procedures, and provides the impression that additional interpretive guid- ance will be forthcoming. Of particular interest to the pro- curement community, the final regulation and the revised application kit begin to establish a framework for linking the SAFETY Act application process and the protections of the act to the government procurement process. This is especially significant because the disconnect between the John J. Pavlick, Jr. is a partner and Dismas N. Locaria is an associate in the Washingion, D.C., office of Venable, LLP. procurement and SAFETY Act approval processes have long been considered by many to severely limit the effec- tiveness of the act. Background The SAFETY Act, when enacted, held tremendous promise for protecting sellers of new, as well as established, technologies that were needed to combat terrorism and re- move impediments to bringing these technologies to mar- ket. It did so by establishing two levels of protection that could be used by DHS following evaluation of the tech- nologies. Technologies receiving designation status caps the liability of the seller of the technology at the level of insurance approved by DHS should there be injury, loss of life, or damage to property or businesses arising out of an act of terrorism where the antiterrorism technology was de- ployed in defense against, response to, or recovery from (continued on page 24) John J. Pavlick, Jr. ) ,s L, V_ 4, Ai