Office of Acquisition and Logistics (OAL)
Acquisition Policy Flash! 20-04
Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment
Purpose: Notify the acquisition workforce of three interim rules issued revising the Federal Acquisition Regulation (FAR) regarding the prohibition on contracting for certain telecommunications and video surveillance services or equipment. This Acquisition Policy Flash supersedes Acquisition Policy Flash 19-16.
Affected FAR Parts: 1, 4, 12, 13, 39, and 52
Effective Dates: August 13, 2019, December 13, 2019 and August 13, 2020.
Background: Section 889(a)(1)(A) and 889(a)(1)(B) of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year 2019 (Pub. L. 115-232) prohibits executive agencies from entering into, extending or renewing a contract with an entity that uses any equipment, system, or service that uses telecommunications or video surveillance equipment or services from certain named companies as a substantial or essential component of any system or as critical technology as part of any system. The proscribed companies are Huawei, ZTE, Hikvision, Hytera, and Dahua and their subsidiaries and affiliates.
Applicability and Required Actions:
Section 889(a)(1)(A)
The Interim Rule covers the portion of Section 889, subsection (a)(1)(A), that prohibits the federal government from acquiring certain telecommunications equipment/services from Huawei, ZTE, and other Chinese companies. Specifically: “The head of an executive agency may not … procure or obtain or extend or renew a contract to procure or obtain 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.” Section (a)(1)(A) took effect on August 13, 2019. The prohibition will apply to all FAR contracts, including micro-purchase contracts. In order to decrease the burden on contractors, the FAR Council published a second interim rule for 889(a)(1)(A), at 84 FR 68314 on December 13, 2019. This rule allows an offeror that represents ”does not” in the annual representation at FAR 52.204–26 to skip the offer-by-offer representation within the provision at FAR 52.204–24.
First Interim Rule (for Section 889(a)(1)(A) – Effective 13 Aug 2019)
Contracting officers shall include the provision at FAR 52.204–24, Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment and the clause at FAR 52.204–25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment as prescribef—
- In solicitations issued on or after August 13, 2019, and resultant contracts; and
- In solicitations issued before August 13, 2019, provided award of the resulting contract(s) occurs on or after August 13, 2019.
Contracting officers shall modify, in accordance with FAR 1.108(d), existing indefinite delivery contracts to include the FAR clause for future orders, prior to placing any future orders. If modifying an existing contract or task or delivery order to extend the period of performance, including exercising an option, contracting officers shall include the clause in accordance with 1.108(d).
Contracting officers shall include the provision at 52.204–24, Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment, in all solicitations for an order, or notices of intent to place an order, including those issued before August 13, 2019, where performance will occur on or after that date, under an existing indefinite delivery contract.
Second Interim Rule (Rule for Section 889(a)(1)(A) – Effective 13 Dec 2019)
Contractors can make a single annual representation in the System for Award Management.
Interim Rule (for Section 889(a)(1)(B) Effective 13 Aug 2020)
Under Section 889(a)(1)(B) federal executive agencies may not “enter into a contract (or extend or renew 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 interim rule, consistent with Section 889(a)(1)(B), requires contracting officers to include a revised representation about a contracting entity’s use of covered telecommunications equipment and services in solicitations after August 13, 2020 and even in solicitations before August 13, 2020 if the resulting contract will be issued on or after August 13. As such, contractors will begin seeing the expanded representation requirement immediately. Contracting officers are also required to modify existing indefinite delivery contracts to include the expanded FAR 52.204-25 prohibition and representation before any new orders are placed and to include the representation before exercising an option period.
Additionally, Section 889(a)(1)(B) requires each agency to identify a senior agency official for supply chain risk management who will be responsible is responsible for ensuring the agency effectively carries out the supply chain risk management functions and responsibilities described in law, regulations and policy.
Action Required: VA Contracting Officers and other VA acquisition professionals shall comply with the FAR as revised by the interim rules noted above. FAC 2020-03 also includes frequently asked questions.
Complete 889 training to ensure compliance with the requirements of Section 889, sections (a)(1)(A) and (a)(1)(B).
The Federal Acquisition Institute, in collaboration with the Defense Acquisition University, has developed a new training for the government-wide acquisition workforce on Section 889 of Public Law 115-232, “Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment,” Part B, which takes effect on August 13. This online course summarizes information and resources to support the acquisition community in applying the new Section 889 regulation and can be downloaded for you to review at your own pace. To take this course and receive 1 Continuous Learning Point, register for FAC 889, Section 889: Prohibition on Telecommunication and Video Equipment. Civilian employees should register through the Federal Acquisition Training Application System.
Additional Information: Direct any questions or comments to Procurement Policy and Warrant Management Service (003A2A) via email at va.procurement.policy@va.gov or via telephone at (202) 632-5288.
