On July 14, 2020, the FAR Counsel posted an Interim Rule implementing Section 889 (a)(1)(B) of the John S. McCain NDAA for FY 2019 (Pub. L. 115-232). Section 889 (a) deals with the prohibition for ”executive agencies from entering into, or extending or renewing, a contract with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system.” The effective date for the Interim Rule was August 13, 2020. However, DoD was given a waiver that extended the deadline for certifying compliance until September 30, 2020. This was subsequently extended to October 23, 2020. Shortly after the Interim Rule was issued, DoD issued guidance on the implementation of the Interim Rule. (GSA also issued a FAQ’s document for MAS contracts.)

The statute covers certain telecom equipment manufactured by Huawei Technologies Company, ZTE Corporation, Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, and Dahua Technology Company, as well as any subsidiaries or affiliates (“covered telecom equipment”). The Interim Rule amended two FAR Clauses 52.204-24 Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment, and 52.204-25 Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. The Interim Rule (FAR 52.204-25) also added definitions for “backhaul,” “interconnection arrangement,” “reasonable inquiry,” and “roaming” to provide clarity when an exception to the prohibition applies. While the prohibition (FAR 52.204-25) is applicable to the entire supply chain to include contracts below the SAT, commercial contracts and COTS contracts, the representation at FAR 52.204-24 does not flow down, currently, to subcontractors. The changes to FAR 52.204-25 also require that contractors report (within one business day) any covered telecom equipment or services discovered during performance. Finally, FAR 52.204-25 requires each contractor to certify that they are not using any covered telecom equipment or plan to use any covered telecom equipment in any system that is being sold to the government. This certification has been applicable to non-DoD contractors since the interim rule became effective, unless an agency extended the due date, like DoD did.

So if you are a DoD contractor, you must certify by Friday, October 23, 2020, that you are not using any covered telecom equipment or plan to use any covered telecom equipment in any system that is being sold to the government.

For more information on this issue, contact MWL Counsel Jody Reed.