We recently spent six enlightening hours listening to Washington, D.C., attorney Stephen Knight, of the firm Smith/Pachter/McWhorter PLC, discuss recent regulatory changes that might affect government contractors. Some of what he discussed was already familiar to us, and we’ve published articles on those topics on this website. But there were new things to learn as well (as one might expect from such an accomplished legal practitioner), and we want to share one of them with you today. It’s about the contract compliance issue(s) associated with text messaging while driving.

Now, we confess that when this interim rule was issued in late September 2010, we didn’t take much notice. After all, California and other states already prohibit such unsafe practices. So what’s the big deal? Well, Stephen explained the big deal and we’re going to try to explain it to you.

Federal Acquisition Circular 2005-46, published September 29, 2010, contained several proposed and final FAR revisions. Amongst those revisions was FAR Case 2009-028, issued as an interim rule. As the FAR Councils explained, “This interim rule [implements] Executive Order 13513, issued on October 1, 2009 … entitled “Federal Leadership on Reducing Text Messaging While Driving.” The interim rule revised FAR Part 23 and implemented a new subpart at 23.11 (“Encouraging Contractor Policies to Ban Text Messaging While Driving”).

Helpfully, the new rule provides definitions for challenging concepts, such as the term “driving” and the term “text messaging”. You may be relieved to note that the definition of “text messaging” “does not include glancing at or listening to a navigational device that is secured in a commercially designed holder affixed to the vehicle”. However, that exception only covers the situation when “the destination and route are programmed into the device either before driving or while stopped in a location off the roadway where it is safe and legal to park”. Otherwise, you are (apparently) not permitted to listen to your navigation device—nor are you (apparently) permitted to use your smart phone as such a device, unless it is “secured in a commercially designed holder affixed to the vehicle”. Okay, we could go on but you get the point—this is a bit of a bureaucratic joke.

What’s not funny is the new contract clause (52.223-18) that came along with the new rule. It states—

(c) The Contractor should--

(1) Adopt and enforce policies that ban text messaging while driving--

(i) Company-owned or -rented vehicles or Government-owned vehicles; or

(ii) Privately-owned vehicles when on official Government business or when performing any work for or on behalf of the Government.

(2) Conduct initiatives in a manner commensurate with the size of the business, such as--

(i) Establishment of new rules and programs or re-evaluation of existing programs to prohibit text messaging while driving; and

(ii) Education, awareness, and other outreach to employees about the safety risks associated with texting while driving.

Moreover, the contract clause is a mandatory flow-down for “all subcontracts that exceed the micro-purchase threshold”.

Need we point out that, in order to comply with the new contract clause, your company may well have to develop new policies and procedures to “prohibit” the undesirable behavior, and will need to educate employees about the new policies and procedures? And you are going to have to perform some level of due diligence on your subcontractors to make sure they are complying with the new rules.

The foregoing really is no laughing matter. In this environment of cost-consciousness, you’re going to have to modify existing HR or ES&H policies and conduct even more employee training.

So now you know.

 

 

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