Updates

New Opportunities for First Responder Agencies

by Brian Finch
By Brian Finch, bfinch@domprep.com The so-called “SAFETY Act”—officially known as the Support Anti-Terrorism by Fostering Effective Technology Act–of 2002 is an important tool in the ongoing efforts to make useful technologies and services more quickly available to the nation’s first-responder community. One reason the Act was created was to give the companies providing anti-terror services and/or technologies the opportunity to receive the liability protection they need to continue in business. The Department of Homeland Security (DHS), which provides the liability protection, The act was created to give companies providing anti-terror service and/or technologies the opportunity to receive the liability protection they need promised from the beginning to continually improve the SAFETY Act application process, and it has done so–most recently by issuing a new SAFETY Act Rule that includes a number of helpful changes designed to make the process both less cumbersome and less expensive and, at the same time, easier both to understand and to implement. To begin with, the new Rule offers some exciting possibilities for greater use of the SAFETY Act by consumers of anti-terror products and services at all levels of government. First-responder agencies and organizations should be particularly aware of the improved ability they now have to link their procurements to the SAFETY Act, and would be well advised to take advantage of the opportunity thus provided whenever and to the maximum extent possible. One of the more important changes provided by the new Rule is the creation of  what are called “Developmental Testing and Evaluation” (DT&E) designations–which can be assigned to any technology (including a service) that is being tested, evaluated, modified, or otherwise being planned for implementation. DT&E designations can be used for only limited periods of time, though–presumptively no more than 36 months; they also can have specific conditions imposed on their applicability, and can be terminated at any time.   An Expedited Review and Other Changes Many SAFETY Act applicants have been requesting a formalized link between the application review process and the procurements of anti-terror technologies. The new Rule has created such a link, which permits somewhat more creative applications of the SAFETY Act.  Under the new Rule, a government agency (federal, state, or local) can seek a preliminary determination of SAFETY Act applicability through what is called a “Pre-Qualification Designation Notice.” That notice will allow a contractor to receive an expedited review and the use of a streamlined SAFETY Act application; in most instances, it also will establish a presumption that the technology under consideration will be a SAFETY Act-approved technology.  The new process will help eliminate the concern that contractors seeking to work in the field of counterterrorism may not receive SAFETY Act approval. This change could be particularly useful for first-responder agencies and organizations that desperately need new cutting-edge technologies but may not have been able to obtain them because of the understandable liability concerns restraining the sellers of the technologies. The new SAFETY Act Rule includes several other positive changes, including provisions that: (a) make DT&E designations can be used for only limited periods of time; they also can have conditions imposed on their applicability clear that acts of terrorism (including cyber terrorism) occurring on foreign soil may be covered under the SAFETY Act so long as the terrorist act causes at least some harm within the United States; (b) ensure that the term “Qualified Anti-Terrorism Technology” applies to services--including design services, software development, threat assessments, vulnerability studies, and program management and integration services–as well as products; and (c) improve the application process by adding changes that make it both simpler and quicker–DHS already has taken steps, in fact, to  reduce the review time to 120 days (from the previous 150 days). Additional changes may be needed in the future, of course, but the initial reaction—from the nation’s first-responder agencies and organizations and from the businesses that provide them the systems and services they need—suggests that the changes made possible by the new Rule will result in better use of the SAFETY Act, by more and more companies—and, consequently a better-equipped and more capable first-responder community.