Congress enacted the SAFETY Act in 2002 in an effort to incentivize the development of anti-terrorism technologies following the attacks of September 11, 2001.  The Act affords liability protections to sellers of Qualified Anti-Terrorism Technologies (“QATTs”) in the event of an act of terrorism where QATTs are deployed.  Although the SAFETY Act’s protections have not yet been tested in court, a recent publication from the Department of Homeland Security’s Office of SAFETY Act Implementation (“OSAI”) further explains and reaffirms how the Act’s most significant liability protection—the government contractor defense—would operate to protect a SAFETY Act-approved company sued in court following a terrorist attack.

OSAI can award three possible levels of SAFETY Act coverage:  (1) Developmental Testing and Evaluation Designation, (2) Designation, or (3) Designation and Certification (“Certification”).  All three levels of protection grant QATT sellers liability protections, including liability caps at DHS-determined insurance levels and prohibitions on the recovery of punitive damages or prejudgment interest.  However, only Certification grants QATT sellers the added liability protection of presumptive immunity from suit in the form of the government contractor defense.

The guidance that OSAI recently issued highlights the broad protections that the government contractor defense provides for Certified QATTs.  Derived from the Supreme Court’s decision in Boyle v. United Technologies Corporation, 487 U.S. 500 (1988), the defense originally immunized government contractors from product liability claims whenever (1) the government issued or approved reasonably precise specifications (2) to which the product conformed, and (3) the contractor informed the government about any potential dangers associated with the equipment actually known to the contractor, but not to the government.  OSAI’s guidance document makes clear that in passing the SAFETY Act, Congress codified Boyle as a static rather than common law defense in order to give Certified QATT sellers “a degree of assurance and certainty regarding the extent of, and manner in which, the defense may apply during litigation.”  Because the SAFETY Act Certification process necessarily requires an in-depth government review of the proposed QATT, Boyle’s elements are satisfied in this context by a showing of (1) a valid Certification, and (2) the absence of any unapproved material changes to the QATT.  “Accordingly, . . . Certification of the QATT is the only evidence necessary to establish that the Seller is entitled to a presumption of dismissal from suit.”  OSAI re-emphasizes that this presumption can only be overcome if, during the SAFETY Act application process, the applicant acted with a “knowing and deliberate intent to deceive the government.”

Thus, this recent OSAI publication re-enforces the significant protections afforded by the Act and provides useful perspective to current and prospective Certification applicants.

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Photo of Raymond Biagini Raymond Biagini

A distinguished counselor and litigator, Raymond Biagini has risen to national prominence in a number of high-profile tort cases, defending commercial and government contractors.  In particular, Mr. Biagini’s cases have established key legal principles in high profile “contractor on the battlefield” tort suits. …

A distinguished counselor and litigator, Raymond Biagini has risen to national prominence in a number of high-profile tort cases, defending commercial and government contractors.  In particular, Mr. Biagini’s cases have established key legal principles in high profile “contractor on the battlefield” tort suits.  In 2002, Mr. Biagini authored the core provisions of the U.S. SAFETY Act which protects homeland security companies from enterprise-threatening tort suits arising out of terror attacks.  Mr. Biagini also has an extensive product liability prevention practice, counseling companies on mechanisms for reducing their tort exposure for products and services sold to government and commercial entities.

Photo of Scott A. Freling Scott A. Freling

Scott Freling represents civilian and defense contractors, at all stages of the procurement process, in their dealings with federal, state, and local government customers and with other contractors. He has a broad-based government contracts practice, which includes compliance counseling, internal investigations, strategic procurement…

Scott Freling represents civilian and defense contractors, at all stages of the procurement process, in their dealings with federal, state, and local government customers and with other contractors. He has a broad-based government contracts practice, which includes compliance counseling, internal investigations, strategic procurement advice, claims and other disputes, teaming and subcontracting, and mergers and acquisitions. He represents clients in federal and state court litigation and administrative proceedings, including bid protests before the Government Accountability Office and the U.S. Court of Federal Claims. He also represents clients in obtaining and maintaining SAFETY Act liability protection for anti-terrorism technologies. Mr. Freling’s experience covers a wide variety of industries, including defense and aerospace, information technology and software, government services, life sciences, renewable energy, and private equity investment in government contractors.