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Posted on Monday, August 20, 2012

The Federal Government Encourages Contractors to Adopt Policies Against Texting While Driving

The dangers associated with texting while driving are well known. Today, thirty-nine states, D.C., Guam and the Virgin Islands ban text messaging for all drivers.   On August 4, 2011, the FAR was amended to include Clause 52.223-18, Encouraging Contractor Policies To Ban Text Messaging While Driving. This rule was published in response to Executive Order 13513, entitled “Federal Leadership on Reducing Text Messaging while Driving,” which requires each Federal agency to encourage contractors and subcontractors to adopt and enforce policies that ban texting while driving.  Agencies are now required to insert FAR 52.223–18 in all solicitations and contracts.

Paragraph (c) of this Clause encourages contractors to:

(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.

Paragraph (d) of the Clause also requires contractors to insert the substance of this clause in all subcontracts that exceed the micro-purchase threshold.

Although the implementation of the policies set forth in FAR 52.223-18(c) is not mandatory, government contractors and subcontractors should seriously consider the benefits associated with adopting policies against texting while driving. Not only could such policies head off possible accidents caused by distracted driving, but they could help insulate the company from liability should an employee cause an accident by texting while driving while arguably acting “in the scope” of his or her employment.

Stephanie Wilson is a Senior Associate at the business law firm Berenzweig Leonard, LLP, located in the Washington, DC region. She can be reached at swilson@berenzweiglaw.com.