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SAFETY Act

One of the greatest concerns for a company deploying a homeland security product or service (collectively referred to as “technology”) is the extraordinarily large liability it faces should an act of terrorism occur despite the use of their anti-terrorism technology. Legal precedence has shown the liability exposure is large enough to cripple an entire enterprise.

To incentivize the creation and deployment of anti-terrorism technologies and provide liability protection, the Support Anti-terrorism by Fostering Effective Technologies Act of 2002 (“SAFETY Act”) was enacted by Congress in the wake of the terrorist attacks on September 11, 2001.

Overview

Once a company submits an application for a technology they have or wish to bring to market, the Science & Technology Directorate within the U.S. Department of Homeland Security (“Department”) evaluates it for coverage. The Department’s review process first determines the effectiveness of a technology’s anti-terrorism capability and then its potential liability exposure.

If the application is approved, SAFETY Act protections drastically limit the liability against damage or injury claims that allege failure of the technology or service.

Types of Coverage Offered

There are two levels of coverage provided to companies that manufacture, sell, or deploy SAFETY Act approved technologies:

Designation: SAFETY Act Designation caps a company’s liability to a specific dollar amount, which the Department determines during the evaluation process.

Developmental Test and Evaluation Designation: A subset of the Designation category, this is designed for promising anti-terrorism technologies that are undergoing operational testing and evaluation, and affords similar protections.

Certification: SAFETY Act Certification grants companies the equivalent of the Government Contractor’s Defense, which is immunity from suit.

Another powerful benefit of certification is the flow down liability protection your customers receive by virtue of your SAFETY Act coverage. By choosing your SAFETY Act approved technology over a competitor without SAFETY Act, an end-user receives immunity from claims that attempt to place liability on them for the alleged failure of the technology during an act of terrorism.

Below are some examples of the types of products and services eligible for SAFETY Act protection:

  1. • Biometric Technology
  2. • Blast Mitigation Materials
  3. • Cargo Screening Services
  4. • Cyber Security
  5. • Detectors/Sensors (CBRNE)
  6. • Emergency/Crisis Management Systems
  7. • Integration Services
  8. • Intellectual Property
  9. • IT Software
  10. • People and Baggage Screening Services
  11. • Security Services
  12. • Standards/Best Practices
  13. • Venue-Specific Security Plans
  14. • Vulnerability Assessments

For questions about your specific case, contact us. dave@catalystdc.com

If approved for any level of SAFETY Act, your company and a non-proprietary description of your technology will be listed on the Department’s publicly accessible SAFETY Act website www.safetyact.gov, which customers can visit to identify technologies with SAFETY Act coverage in place. The Department will also provide approved companies with the official SAFETY Act seal, which can be used for marketing materials, website advertising, conference exhibition booths, etc.

This third-party validation by the Department of your technology’s stated effectiveness provides a tremendous marketing advantage in that  it provides approved technologies with a powerful market differentiator among its competitors.

Typically, SAFETY Act protections are valid for five years. To ensure continuous liability protections, approved companies are encouraged to renew their protections by way of the SAFETY Act Renewal process. The Renewal process requires up-to-date effectiveness data for the technology during the deployment time period. A comprehensive renewal strategy is a must for SAFETY Act protections of any homeland security technology.

In order to help you properly benefit from the advantages the SAFETY Act offers, Catalyst offers support with every step of the SAFETY Act application process. For many businesses, handling an application directly can be time consuming and can burden internal resources by taking staff away from their primary responsibilities. The experts at Catalyst offer the technical background, legal expertise, and federal and industry know-how to help you get your application approved so that you can focus on your business.

Catalyst Partners’ SAFETY Act practice is anchored by Dr. David McWhorter and Akmal Ali, J.D. Dr. McWhorter was at one time the lead technical reviewer in the SAFETY Act office, and assisted in the development of the SAFETY Act review process. Mr. Ali most recently served in role of Deputy Director of the Department’s SAFETY Act office, speaking nationwide on behalf of the Department to numerous associations and private sector organizations.

Collectively, the two have assisted in the review of hundreds of SAFETY Act applications. Simply put, the experience and expertise Catalyst Partners provides on the SAFETY Act is unmatched. Catalyst Partners provides the ability to assess a technology’s effectiveness and translate that into a successful award of a SAFETY Act Designation or Certification.

The scope of our services can be tailored to your specific needs. For most clients, we provide a “turn-key” solution by crafting the entire application from step one. For other clients, we join efforts while the application process is already underway, if it is moving slowly, or has been stalled. We also offer expert advice on structuring your insurance policies and can refer clients to trusted insurance brokers who understand the SAFETY Act.

Once we’ve determined the scope of your particular application, Catalyst Partners offers various fee structures. Typically, our rate is based on a flat fee that depends on the scope of work. Alternatively, we can provide our clients with an hourly rate well below typical Washington, D.C. law firm rates. Regardless of which you prefer, we always provide an upfront estimate at no cost.

Catalyst Partners can assist you with a particular phase of the SAFETY Act application—or we can manage the entire process for you. Here’s what each application requires:

Phase I: Compilation

  • • Assess the type of SAFETY Act eligibility the technology warrants.
  • • Identify the proper grouping of technologies in order to realize efficiencies in the application process.
  • • Compile the necessary documents for the application.

Phase II: Application

  • • Draft the application, including the correct narrative to explain the technology.
  • • Coordinate with the Department during the review process, especially during the “Completeness Phase.”
  • • Provide timely follow up information as requested by D.H.S.

Phase III: Bargaining

  • • Advocate fair and equitable insurance requirements.
  • • Negotiate with insurance brokers to receive discounted rates after successfully obtaining SAFETY Act coverage.

Phase IV: Implementation

  • • Comply with post-award requirements.
  • • Ensure proper submission of technology, revenue, and insurance modifications to existing awards in order to maintain compliance.
  • • Prepare for the eventual Renewal application.

Whether you are just exploring whether your product can benefit from SAFETY Act protection, are ready to begin your application, or are encountering problems with an existing application, we are here to help. Contact us:

Dr. Dave McWhorter, Principal
(202) 331-3028
dave@catalystdc.com 

Akmal Ali, Principal
(202) 503-1412
akmal.ali@catalystdc.com

Catalyst Partners is based in Washington, DC. To learn more about our company and the other services we offer, visit our homepage.


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