FAR 50.204—Policy.
Plain-English Summary
FAR 50.204 sets the government’s policy for how agencies should handle the SAFETY Act when acquiring technologies that may help prevent, detect, or respond to acts of terrorism. It covers four main topics: whether agencies should identify technologies that may be appropriate for SAFETY Act protections and communicate that to DHS; whether agencies should encourage offerors to seek SAFETY Act protections even before a solicitation is issued; the prohibition on requiring SAFETY Act protections as a condition of competing for an award; and the prohibition on assuming DHS will grant SAFETY Act designation or certification after award unless a specific exception applies. It also clarifies that a DHS decision to extend SAFETY Act protections is not the same as a finding that the technology satisfies the solicitation’s technical requirements. In practice, this section is meant to preserve offeror choice, avoid improper solicitation conditions, and prevent agencies from treating SAFETY Act status as a substitute for source selection or technical evaluation. It helps contracting personnel coordinate with DHS without turning SAFETY Act protections into a mandatory procurement requirement.
Key Rules
Identify suitable technologies
Agencies should assess whether a technology being procured is appropriate for SAFETY Act protections. If so, they should formally communicate that determination to DHS to support contractor applications under the relevant DHS criteria.
Encourage, do not require
Agencies should encourage offerors to seek SAFETY Act protections for their technologies, including before a solicitation is issued. However, agencies may not mandate that offerors obtain SAFETY Act protections because the decision to apply belongs to the offeror.
No contingent offers before award
Agencies may not solicit offers that are contingent on SAFETY Act designation or certification being obtained before contract award unless an exception is authorized under 50.205-3.
No presumption of post-award approval
Agencies may not solicit offers or award contracts on the assumption that DHS will issue SAFETY Act designation or certification after award unless authorized under 50.205-4.
SAFETY Act is not a solicitation finding
A DHS decision to extend SAFETY Act protections for a technology does not mean the technology meets, or fails to meet, the requirements of the solicitation. Procurement evaluations must still be made independently.
Responsibilities
Agencies
Assess whether a technology may be appropriate for SAFETY Act protections, communicate that determination to DHS when appropriate, encourage offerors to pursue protections, and avoid making SAFETY Act status a mandatory condition or an assumed post-award outcome unless a specific authorization applies.
Contracting Officers
Structure solicitations so they do not improperly require SAFETY Act designation or certification, avoid contingent or presumptive award language without authorization, and ensure source selection decisions are based on solicitation requirements rather than DHS protection status.
Offerors/Contractors
Decide whether to seek SAFETY Act protections for their technologies, including before solicitation issuance if they choose, and understand that SAFETY Act status is separate from whether their proposal satisfies the solicitation.
DHS
Evaluate applications for SAFETY Act designation or certification under its own statutory and regulatory criteria; its protection decision is independent of the agency’s procurement evaluation.
Practical Implications
Contracting teams should treat SAFETY Act status as a helpful risk-management and liability issue, not as a substitute for technical acceptability or best-value evaluation.
A common pitfall is writing solicitation language that effectively requires an offeror to obtain SAFETY Act protections; that is generally prohibited unless a specific FAR exception applies.
Another pitfall is assuming that because DHS granted SAFETY Act protection, the technology automatically meets the solicitation’s performance or technical requirements; it does not.
Agencies that believe a technology may qualify should coordinate early and document the determination, because that can help support contractor applications and reduce delays.
Offerors should decide early whether to pursue SAFETY Act protections, since the process can take time and may affect proposal strategy, but they should not assume it will be required or determinative of award.
Official Regulatory Text
(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; (2) Encourage offerors to seek SAFETY Act protections for their offered technologies, even in advance of the issuance of a solicitation; and (3) Not mandate SAFETY Act protections for acquisitions because applying for SAFETY Act protections for a particular technology is the choice of the offeror. (b) Agencies shall not solicit offers contingent upon SAFETY Act designation or certification occurring before contract award unless authorized in accordance with 50.205-3 . (c) Agencies shall not solicit offers or award contracts presuming DHS will issue a SAFETY Act designation or certification after contract award unless authorized in accordance with 50.205-4 . (d) The DHS determination to extend SAFETY Act protections for a particular technology is not a determination that the technology meets, or fails to meet, the requirements of a solicitation.