CQ HOMELAND SECURITY – TRANSPORTATION & INFRASTRUCTURE
Nov. 5, 2004 – 8:23 p.m.

TSA Opening Airports to Private Security Screeners
By Caitlin Harrington, CQ Staff

More than three years after the government replaced troubled passenger screening companies with a federal workforce, the Transportation Security Administration (TSA) is preparing to give the industry a second chance.

On Friday, TSA issued contracting guidelines for companies hoping to replace the workforce of federal passenger and baggage screeners who have been on duty at nearly all of the nation’s 440 airports since shortly after the Sept. 11 terror attacks.

Later this month, airports will be allowed to “opt out” of the federal system and return to a workforce of private screeners — albeit under tight federal rules. For the past three years the airports have been operating under an aviation security law (PL 107-71) that banned private screeners until November 2004.

Starting on Nov. 18, airports can apply to use private screeners. According to a Nov. 5 presolicitation notice, TSA will contract with the security companies directly and assign them to airports that have requested private screeners.

TSA will require the screening companies to compete for the contracts, but to vie for the work the companies will first have to show proof of U.S. ownership and financial stability.

Those that do qualify will be included on one of two lists — one for large businesses, and one for smaller outfits with average revenues totaling less than $10.5 million over the past three years .

Once a company is selected for the list, it will compete against other screening companies in its region for a contract, the presolicitation notice said.

A TSA official said Friday that as part of the opt-out plan, the agency plans to provide the screening companies with “some kind of full or capped” liability coverage to protect them from lawsuits in the aftermath of a terrorist attack

That coverage probably will be provided under the federal Safety Act, a program that offers liability coverage to companies involved in providing the government with anti-terrorism technologies and services, the official said.

In fact, DHS Undersecretary for Science and Technology Charles E. McQueary outlined the department’s plans for indemnifying screening companies in a June 14 letter to Rep. Christopher Cox, chairman of the House Select Committee on Homeland Security.

“The Office of SAFETY Act implementation is working with TSA and has agreed to accept the TSA Standard Operating Procedures as evidence that Passenger Screening is an anti-terrorism technology and to accept the certification of the Administrator of TSA that a particular offeror is able to provide these services at a performance level equal to or greater than the Federal employees currently providing the service as evidence of the safety and efficacy of the Seller’s technology,” McQueary said in the letter. “Consequently, offerors will only be required to submit information relating to insurance and their liability exposure.”

Some screening companies already have applied for Safety Act coverage in anticipation of the reopening of the airport security market, said Gerry Berry, president of Covenant Aviation Security.

“If there is some catastrophic event, no matter what, everybody is going to get sued. That’s why we have lawyers ... under the Safety Act, the government doesn’t entertain them,” Berry said.

Covenant and three other contractors are part of a two-year pilot program, set up by Congress, that is testing the feasibility of switching back to privatized screeners.

Covenant carries its own insurance but does not have any liability protection from the federal government, said Berry.

“It’s important that everybody apply and get accepted under the Safety Act,” he said.

And although they would not be party to the private companyies’ contracts with TSA, airport executives also have expressed worries about liability issues.

Industry sources say those worries are likely to result in only a couple of dozen airports applying for the opt-out program.

Experts, however, say the Safety Act would essentially eliminate the possibility of lawsuits against the TSA, DHS, airports, port authorities, and security companies in the aftermath of a terrorist attack.

The trade-off is that victims’ families could not sue for compensation.

“Make no mistake about it: The protections that the Safety Act offers ... are enormous, and they do deny benefits to people who are injured in a terrorist event,” said Alan Chvotkin, senior vice president and counsel for the Professional Services Council, which represents companies that provide services to the federal government.

“That’s the downside,” he said.

Ray Biagini, a lawyer at the Washington, D.C., law firm McKenna Long & Aldridge, said that in lieu of lawsuits, Congress might need to create a compensation system similar to the September 11th Victim Compensation Fund.

“I wouldn’t be surprised if that kind of process is set up again,” said Biagini, who wrote part of the Safety Act.

Financial Stability To participate in the private screening program, the presolicitation notice says companies must prove that they are owned and controlled by a U.S. citizen and that they will pay their screeners the same salaries that federal screeners receive.

They also must give hiring preference to federal screeners who have been displaced because of the opt-out program, and they must produce several documents proving their financial stability.

Congress mandated a number of specific qualifications for security screeners themselves in the aviation security law. Among them are an ability to speak English and operate screening technology, proof of American citizenship and a high school diploma.- Top of Page