This is a prepublication version of an interim FAR
rule being issued by DoD, GSA, and NASA that is being
posted early. This interim rule is what has been sent to
the Federal Register for publication. Formatting or other
administrative changes may be made by the Federal Register
prior to publication. Although DoD, GSA, and NASA have
taken steps to ensure the accuracy of this prepublication
version, it is not the official version.
Please refer to the official version in a forthcoming
Federal Register publication, which will appear on the
Government Printing Office's FDsys website
(https://www.govinfo.gov/app/collection/fr) and on
Regulations.gov (www.regulations.gov). Once the official
version is published in the Federal Register, this
prepublication version will be removed and replaced with a
link to the official version. At that time, you will also
be able to access the online docket for this Federal
Register document at http://www.regulations.gov. Public
comments will be accepted in accordance with the Addresses
section of the rule after publication of the official
version in the Federal Register.

 This is a prepublication version of this interim rule, which has been provided to the Federal
Register for publication. Formatting or other administrative changes may be made by the
Federal Register prior to publication.**

DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 4, 12, 13, 39, and 52
[FAC 2019-05; FAR Case 2018-017; Docket No. 2018-0017,
Sequence No. 1]
RIN 9000-AN83
Federal Acquisition Regulation:

Prohibition on Contracting

for Certain Telecommunications and Video Surveillance
Services or Equipment
AGENCY:

Department of Defense (DoD), General Services

Administration (GSA), and National Aeronautics and Space
Administration (NASA).
ACTION:
SUMMARY:

Interim rule.
DoD, GSA, and NASA are issuing an interim rule

amending the Federal Acquisition Regulation (FAR) to
implement section 889(a)(1)(A) of the John S. McCain
National Defense Authorization Act (NDAA) for Fiscal Year
(FY) 2019 (Pub. L. 115-232).
DATES:

Effective Date:

August 13, 2019.

Applicability:
Contracting officers shall include the provision at
FAR 52.204-24, Representation Regarding Certain

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Register for publication. Formatting or other administrative changes may be made by the
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Telecommunications and Video Surveillance Services or
Equipment and clause at FAR 52.204-25, Prohibition on
Contracting for Certain Telecommunications and Video
Surveillance Services or Equipment as prescribed—
• 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).
The contracting officer 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

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Register for publication. Formatting or other administrative changes may be made by the
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August 13, 2019, where performance will occur on or after
that date, under an existing indefinite delivery contract.
Comment date:

Interested parties should submit

written comments to the Regulatory Secretariat Division at
one of the addresses shown below on or before [insert date
60 days after date of publication in the FEDERAL REGISTER]
to be considered in the formation of the final rule.
ADDRESSES:

Submit comments in response to FAR Case 2018-

017 by any of the following methods:
• Regulations.gov:

http://www.regulations.gov.

Submit comments via the Federal eRulemaking portal
by searching for “FAR Case 2018-017”.

Select the

link “Comment Now” that corresponds with “FAR Case
2018-017”.
screen.

Follow the instructions provided on the

Please include your name, company name (if

any), and “FAR Case 2018-017” on your attached
document.
• Mail:

General Services Administration, Regulatory

Secretariat Division (MVCB), 1800 F Street NW., 2nd
Floor, Washington, DC 20405.
Instructions:

Please submit comments only and cite “FAR

Case 2018-017” in all correspondence related to this case.
All comments received will be posted without change to

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Register for publication. Formatting or other administrative changes may be made by the
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http://www.regulations.gov, including any personal and/or
business confidential information provided.
FOR FURTHER INFORMATION CONTACT:
202-969-4075.

Farpolicy@gsa.gov or call

Please cite FAR Case 2018-017.

SUPPLEMENTARY INFORMATION:
I.

Background
This interim rule revises the FAR to implement section

889(a)(1)(A) of the NDAA for FY 2019 (Pub. L. 115-232).
Section 889(a)(1)(A) prohibits agencies from procuring or
obtaining, or extending or renewing 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 a
critical technology as part of any system, on or after
August 13, 2019.
“Covered telecommunications equipment or services,” as
defined in the statute, means—
• Telecommunications equipment produced by Huawei
Technologies Company or ZTE Corporation (or any
subsidiary or affiliate of such entities);
• For the purpose of public safety, security of
Government facilities, physical security
surveillance of critical infrastructure, and other

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Register for publication. Formatting or other administrative changes may be made by the
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national security purposes, video surveillance and
telecommunications equipment produced by Hytera
Communications Corporation, Hangzhou Hikvision
Digital Technology Company, or Dahua Technology
Company (or any subsidiary or affiliate of such
entities);
• Telecommunications or video surveillance services
provided by such entities or using such equipment;
or
• Telecommunications or video surveillance equipment
or services produced or provided by an entity that
the Secretary of Defense, in consultation with the
Director of National Intelligence or the Director of
the Federal Bureau of Investigation, reasonably
believes to be an entity owned or controlled by, or
otherwise connected to, the government of a covered
foreign country.
The rule adopts the definition of critical
technologies included in the Foreign Investment Risk Review
Modernization Act of 2018 (FIRRMA) (Section 1703 of Title
XVII of the NDAA for FY 2019, Pub. L. 115-232, 50 U.S.C.
4565(a)(6)(A)).

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“Covered foreign country,” as defined in section 889,
means the People’s Republic of China.
Under certain circumstances, section 889 allows the
head of an executive agency to grant a one-time waiver on a
case-by-case basis for up to a two-year period; in other
circumstances, waivers issued by the Director of National
Intelligence are authorized.
This rule requires submission of a representation with
each offer that will require offerors to identify as part
of their offer any covered telecommunications equipment or
services that will be provided to the Government.

DoD,

GSA, and NASA recognize that some agencies may need to
tailor the approach to the information collected based on
the unique mission and supply chain risks for their agency.
In order to reduce the information collection burden
imposed on the public, DoD, GSA, and NASA are currently
working on updates to the System for Award Management to
allow offerors to represent annually whether they sell
equipment, systems, or services that include covered
telecommunications equipment or services.

Only offerors

that provide an affirmative response to the annual
representation would be required to provide the offer-byoffer representation in their offers for contracts and for

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Register for publication. Formatting or other administrative changes may be made by the
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task or delivery orders under indefinite delivery
contracts.
The prohibition in section 889(a)(1)(B) is not
effective until August 13, 2020, and will be implemented
through separate rulemaking.
II.

Discussion and Analysis
This rule amends FAR part 4, adding a new subpart

4.21, Prohibition on Contracting for Certain
Telecommunications and Video Surveillance Services or
Equipment, with a corresponding new provision at 52.204-24,
Representation Regarding Certain Telecommunications and
Video Surveillance Services or Equipment, and contract
clause at 52.204-25, Prohibition on Contracting for Certain
Telecommunications and Video Surveillance Services or
Equipment.

The rule adds text in subpart 12.3, Acquisition

of Commercial Items, and subpart 13.2, Actions at or Below
the Micro-Purchase Threshold, to address section
889(a)(1)(A) with regard to commercial item representations
and micro-purchases.
The definition of “critical technologies” provided in
FIRRMA has been adopted to address the prohibition in
section 889(a)(1)(A) on providing covered
telecommunications equipment or services as “critical

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Register for publication. Formatting or other administrative changes may be made by the
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technology as part of any system.”

As with section 889,

FIRRMA is aimed at ensuring that the United States is
protected from certain risks regarding foreign actors. In
effectuating these protections, defining terms in a
consistent manner, to facilitate consistent application, is
crucial.

While there are elements of this definition that

may not raise concerns regarding covered telecommunications
equipment or services (for example, the inclusions of
select agents or toxins), the majority of identified
categories in the FIRRMA definition of “critical
technologies” include or could potentially include covered
telecommunications equipment or services.

Since the

prohibition does not apply if no covered telecommunications
equipment or services are present, a definition that
includes categories that may be unlikely to include
telecommunications equipment or services is overbroad in a
way that incurs no additional cost, and ensures the
benefits of consistency with other Government efforts.
To implement section 889(a)(1)(A), the clause at
52.204-25 prohibits contractors from providing any
equipment, system, or service that uses covered
telecommunications equipment or services as a substantial
or essential component of any system, or as critical

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Register for publication. Formatting or other administrative changes may be made by the
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technology as part of any system, unless an exception or a
waiver applies.

The contractor must also report any such

equipment, systems, or services discovered during contract
performance; this requirement flows down to subcontractors.
The provision at 52.204-24 is required in all
solicitations, and includes a representation that will
require offerors to identify as part of their offer any
covered telecommunications equipment or services that will
be provided to the Government.

The additional information

provided through this representation will assist the
Government in appropriately assessing the presence of any
covered telecommunications equipment or services that may
be present in an offer, for example, to determine if the
items in question will be used as a substantial or
essential component, or to determine if a waiver request
may be appropriate.
This rule also adds cross-references in FAR parts 39,
Acquisition of Information Technology, and 13, Simplified
Acquisition Procedures, to the coverage of the section 889
prohibition at FAR subpart 4.21.

In addition, the rule

adds OMB Control Number 9000-0199 to the list at FAR 1.106
of OMB approval under the Paperwork Reduction Act.

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Register for publication. Formatting or other administrative changes may be made by the
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III.

Applicability to Contracts at or Below the Simplified

Acquisition Threshold and for Commercial Items, Including
Commercially Available Off-the-Shelf Items
This rule adds a new provision at 52.204-24,
Representation Regarding Certain Telecommunications and
Video Surveillance Services or Equipment, and a new
contract clause at 52.204-25, Prohibition on Contracting
for Certain Telecommunications and Video Surveillance
Services or Equipment, in order to implement section
889(a)(1)(A) of the NDAA for FY 2019, which prohibits the
purchase of 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 on or after
August 13, 2019, unless an exception applies or a waiver
has been granted.
A.

Applicability to Contracts at or below the

Simplified Acquisition Threshold
41 U.S.C. 1905 governs the applicability of laws to
acquisitions at or below the simplified acquisition
threshold (SAT).

Section 1905 generally limits the

applicability of new laws when agencies are making
acquisitions at or below the SAT, but provides that such

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acquisitions will not be exempt from a provision of law
under certain circumstances, including when the FAR Council
makes a written determination and finding that it would not
be in the best interest of the Federal Government to exempt
contracts and subcontracts in amounts not greater than the
SAT from the provision of law.
B.

Applicability to Contracts for the Acquisition of

Commercial Items, Including Commercially Available Off-theShelf Items
41 U.S.C. 1906 governs the applicability of laws to
contracts for the acquisition of commercial items, and is
intended to limit the applicability of laws to contracts
for the acquisition of commercial items.

Section 1906

provides that if the FAR Council makes a written
determination that it is not in the best interest of the
Federal Government to exempt commercial item contracts, the
provision of law will apply to contracts for the
acquisition of commercial items.
Finally, 41 U.S.C. 1907 states that acquisitions of
commercially available off-the-shelf (COTS) items will be
exempt from a provision of law unless certain circumstances
apply, including if the Administrator for Federal
Procurement Policy makes a written determination and

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Register for publication. Formatting or other administrative changes may be made by the
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finding that would not be in the best interest of the
Federal Government to exempt contracts for the procurement
of COTS items from the provision of law.
C.

Determinations

The FAR Council has determined that it is in the best
interest of the Government to apply the rule to contracts
at or below the SAT and for the acquisition of commercial
items.

The Administrator for Federal Procurement Policy

has determined that it is in the best interest of the
Government to apply this rule to contracts for the
acquisition of COTS items.
While the law does not specifically address
acquisitions of commercial items, including COTS items,
there is an unacceptable level of risk for the Government
in buying equipment, systems, or services that use covered
telecommunications equipment or services as a substantial
or essential component of any system, or as critical
technology as part of any system.

This level of risk is

not alleviated by the fact that the equipment or service
being acquired has been sold or offered for sale to the
general public, either in the same form or a modified form
as sold to the Government (i.e., that it is a commercial
item or COTS item), nor by the small size of the purchase

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Register for publication. Formatting or other administrative changes may be made by the
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(i.e., at or below the SAT).

As a result, agencies may

face increased exposure for violating the law and
unknowingly acquiring covered telecommunication equipment
or services absent coverage of these types of acquisitions
by this rule.
IV.

Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct

agencies to assess all costs and benefits of available
regulatory alternatives and, if regulation is necessary, to
select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health
and safety effects, distributive impacts, and equity).
E.O. 13563 emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility.

This rule has been

designated a “significant regulatory action” under E.O.
12866.

Accordingly, the Office of Management and Budget

(OMB) has reviewed this rule.

This rule is not a major

rule under 5 U.S.C. 804.
V.

Executive Order 13771
This rule is not subject to the requirements of E.O.

13771, because the rule is issued with respect to a
national security function of the United States.

14

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Register for publication. Formatting or other administrative changes may be made by the
Federal Register prior to publication.**

highlighted by sections III, VII, and VIII of this
preamble, national security is a primary direct benefit of
this rule.

Also, though this rule is subject to the

regulatory publication requirements of 41 U.S.C. 1707,
application of the national security exemption under E.O.
13771 requires assessing the application of the “good
cause” exception under 5 U.S.C. 553.

This rule meets the

“good cause” exception as the one-year deadline Congress
established to implement section 889(a)(1)(A) would not
provide sufficient time for notice and comment in light of
the complex nature of the rule and sensitive interagency
process.
VI.

Regulatory Flexibility Act
DoD, GSA, and NASA expect that this rule may have a

significant economic impact on a substantial number of
small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.

An Initial

Regulatory Flexibility Analysis (IRFA) has been performed,
and is summarized as follows:
The reason for this interim rule is to implement
section 889(a)(1)(A) of the John S. McCain National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L.
115-232).
The objective of the rule is to prescribe appropriate
policies and procedures to enable agencies to determine and
ensure that they are not procuring or obtaining any
equipment,
system,
or
service
that
uses
covered
telecommunications equipment or services as a substantial

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Register for publication. Formatting or other administrative changes may be made by the
Federal Register prior to publication.**
or essential component of any system, or as critical
technology as part of any system on or after August 13,
2019. The legal basis for the rule is section 889(a)(1)(A)
of the NDAA for FY 2019, which prohibits Government
procurement of such equipment, systems, and services on or
after that date, unless an exception applies or a waiver
has been granted.
This collection includes a burden for reporting
during contract performance and a representation.
A data
set was generated from the Federal Procurement Data System
(FPDS) for fiscal years (FY) 2016, 2017, and 2018 for use
in estimating the number of small entities affected by this
rule.
The representation requirement in FAR provision
52.204-24 and the reporting requirement in the clause at
FAR 52.204-25 will be incorporated in all solicitations and
contracts, including contracts with small entities.
The
FPDS data indicates that the Government awarded contracts
to an average of 95,223 unique entities, of which 69,865
(73 percent) were small entities.
DoD, GSA, and NASA
estimate that representations will be received from twice
this number of entities, or 139,730 small entities. While
representations will be submitted by all offerors, detailed
additional information is only estimated to be required
from approximately 10 percent of offerors, or 13,973 small
entities.
It is estimated that reports will be submitted
by 5 percent of contractors, or 3,493 small entities.
The provision at FAR 52.204-24 requires each offeror
to
represent
whether
it
will
provide
covered
telecommunications equipment or services. If the offeror
responds affirmatively, the offeror is required to further
disclose substantial detail regarding the basis for the
affirmative
representation.
Representations
will
be
submitted by all offerors, or 139,730 small entities; it is
estimated
that
detailed
representations
following
an
affirmative response will be submitted by 10 percent of
contractors, or 13,973 small entities.
The clause at FAR 52.204-25 requires contractors and
subcontractors to report to the contracting officer, or for
DoD
through
https://dibnet.dod.mil,
any
discovery
of
covered telecommunications equipment or services during the
course of contract performance.
The rule does not duplicate,
with any other Federal rules.

overlap,

or

conflict

Because of the nature of the prohibition enacted by
section 889(a)(1)(A), it is not possible to establish
different
compliance
or
reporting
requirements
or
timetables that take into account the resources available
to small entities or to exempt small entities from coverage

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Register for publication. Formatting or other administrative changes may be made by the
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of the rule, or any part thereof.
However, in order to
reduce the information collection burden imposed on the
public, DoD, GSA, and NASA are currently working on updates
to the System for Award Management to allow offerors to
represent annually whether they sell equipment, systems, or
services that include covered telecommunications equipment
or services.
Only offerors that provide an affirmative
response to the annual representation would be required to
provide the offer-by-offer representation in their offers
for contracts and for task or delivery orders under
indefinite delivery contracts.
DoD, GSA, and NASA were
unable to identify any alternatives that would reduce the
burden on small entities and still meet the objectives of
section 889.

The Regulatory Secretariat Division has submitted a
copy of the IRFA to the Chief Counsel for Advocacy of the
Small Business Administration.

A copy of the IRFA may be

obtained from the Regulatory Secretariat Division.

DoD,

GSA, and NASA invite comments from small business concerns
and other interested parties on the expected impact of this
rule on small entities.
DoD, GSA, and NASA will also consider comments from
small entities concerning the existing regulations in
subparts affected by the rule in accordance with 5 U.S.C.
610.

Interested parties must submit such comments

separately and should cite 5 U.S.C. 610 (FAR Case 2018-017)
in correspondence.
VII.

Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et

seq.) (PRA) provides that an agency generally cannot
conduct or sponsor a collection of information, and no
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Register for publication. Formatting or other administrative changes may be made by the
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person is required to respond to nor be subject to a
penalty for failure to comply with a collection of
information, unless that collection has obtained OMB
approval and displays a currently valid OMB Control Number.
DoD, GSA, and NASA requested, and OMB authorized,
emergency processing of the collection of information
involved in this rule, consistent with 5 CFR 1320.13.

DoD,

GSA, and NASA have determined the following conditions have
been met:
a.

The collection of information is needed prior to

the expiration of time periods normally associated with a
routine submission for review under the provisions of the
PRA, because the prohibition in section 889(a)(1)(A) goes
into effect on August 13, 2019.
b.

The collection of information is essential to the

mission of the agencies to ensure the Federal Government
complies with section 889(a)(1)(A) on the statute’s
effective date in order to protect the Government supply
chain from risks posed by covered telecommunications
equipment or services.
c.

Moreover, DoD, GSA, and NASA cannot comply with

the normal clearance procedures because public harm is
reasonably likely to result if current clearance procedures

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Register for publication. Formatting or other administrative changes may be made by the
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are followed.

Authorizing collection of this information

on the effective date will ensure that agencies do not
procure or obtain, or extend or renew a contract to procure
or obtain, equipment, systems, or services in violation of
the prohibition in section 889(a)(1)(A).

It will also

avoid substantial additional costs that may be incurred
from having to replace such equipment, systems, or services
that are purchased in violation of section 889(a)(1)(A), as
well as additional administrative costs for reprocurement.
DoD, GSA, and NASA intend to provide a separate 60-day
notice in the Federal Register requesting public comment on
the information collections contained within this rule
under OMB Control Number 9000-0199.
Agency: DoD, GSA, and NASA.
Type of Information Collection: New Collection.
Title of Collection: Representation Regarding Certain
Telecommunications and Video Surveillance Services or
Equipment.
Affected Public: Private Sector – Business.
Total Estimated Number of Respondents: 190,446.
Average Responses per Respondents: 41.25.
Total Estimated Number of Responses: 7,855,881.
Average Time (for both positive and negative
representations) per Response: 0.105 hour.
Total Annual Time Burden: 821,274.
Agency: DoD, GSA, and NASA.
Type of Information Collection: New Collection.
Title of Collection: Prohibition on Contracting for
Certain Telecommunications and Video Surveillance
Services or Equipment.
Affected Public: Private Sector – Business.
Total Estimated Number of Respondents: 4,761.
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Register for publication. Formatting or other administrative changes may be made by the
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Average Responses per Respondents: 5.
Total Estimated Number of Responses: 23,805.
Average Time per Response: 1.5 hour.
Total Annual Time Burden: 35,708.
The public reporting burden for this collection of
information consists of a representation to identify
whether an offeror will provide covered telecommunications
equipment and services as required by 52.204-24 and reports
of identified covered telecommunications equipment and
services during contract performance as required by 52.20425.

Representations are estimated to average 0.105 hour

(the average of the time for both positive and negative
representations) per response to review the prohibitions,
research the source of the product or service, and either
provide a negative response in the majority of cases or to
complete the additional detailed disclosure, if applicable.
Reports are estimated to average 1.5 hours per response,
including the time for reviewing definitions, searching
existing data sources, gathering and maintaining the data
needed, and completing and reviewing the report.
The subsequent 60-day notice to be published by DoD,
GSA, and NASA will invite public comments.
VIII.

Determination to Issue an Interim Rule
A determination has been made under the authority of

the Secretary of Defense (DoD), Administrator of General
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Services (GSA), and the Administrator of the National
Aeronautics and Space Administration (NASA) that urgent and
compelling reasons exist to promulgate this interim rule
without prior opportunity for public comment.

It is

critical that the FAR is immediately revised to include the
requirements of the law, which prohibits the Federal
Government from procuring or obtaining, or extending or
renewing a contract to procure or obtain, any equipment,
system, or service that uses covered telecommunication
equipment or services as a substantial or essential
component of any system, or as a critical technology as
part of any system on or after August 13, 2019, unless an
exception applies or a waiver is granted.
Because section 889(a)(1)(A) takes effect on August
13, 2019, this rule must take effect immediately to ensure
agencies and contractors are implementing the statutory
prohibition.
Pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b), DoD,
GSA, and NASA will consider public comments received in
response to this interim rule in the formation of the final
rule.
List of Subjects in 48 CFR Parts 1, 4, 12, 13, 39, and 52
Government procurement.

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Federal Register prior to publication.**

Janet M. Fry,
Director,
Federal Acquisition Policy Division,
Office of Government-wide Policy.

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Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 4,
12, 13, 39, and 52 as set forth below:
1.

The authority citation for 48 CFR parts 1, 4, 12,

13, 39, and 52 continues to read as follows:
AUTHORITY:

40 U.S.C. 121(c); 10 U.S.C. chapter 137; and

51 U.S.C. 20113.
PART 1—FEDERAL ACQUISITION REGULATIONS SYSTEM
2.

In section 1.106 amend the table by adding in

numerical sequence the entries “4.21”, “52.204-24” and
“52.204-25” to read as follows:
FAR segment
*

*

*

*

OMB control No.

*

*

*

4.21
*

*

*

*

*

9000-0199
*

*

*

*

*

*

*

*

52.204-24

9000-0199

52.204-25

9000-0199

*

*

*

3.

*

*

*

PART 4—ADMINISTRATIVE AND INFORMATION MATTERS
*

*

*

*

*

Revise Part 4 heading and add Subpart 4.21 to read

as follows:

*

*

*

*

23

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Register for publication. Formatting or other administrative changes may be made by the
Federal Register prior to publication.**

Subpart 4.21—Prohibition on Contracting for Certain
Telecommunications and Video Surveillance Services or
Equipment
4.2100

Scope of subpart.

This subpart implements paragraph (a)(1)(A) of section
889 of the John S. McCain National Defense Authorization
Act for Fiscal Year 2019 (Pub. L. 115-232).
4.2101

Definitions.

As used in this subpart—
Covered foreign country means The People’s Republic of
China.
Covered telecommunications equipment or services
means—
(1)

Telecommunications equipment produced by Huawei

Technologies Company or ZTE Corporation, (or any subsidiary
or affiliate of such entities);
(2)

For the purpose of public safety, security of

Government facilities, physical security surveillance of
critical infrastructure, and other national security
purposes, video surveillance and telecommunications
equipment produced by Hytera Communications Corporation,
Hangzhou Hikvision Digital Technology Company, or Dahua

24

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Register for publication. Formatting or other administrative changes may be made by the
Federal Register prior to publication.**

Technology Company (or any subsidiary or affiliate of such
entities);
(3)

Telecommunications or video surveillance services

provided by such entities or using such equipment; or
(4)

Telecommunications or video surveillance

equipment or services produced or provided by an entity
that the Secretary of Defense, in consultation with the
Director of National Intelligence or the Director of the
Federal Bureau of Investigation, reasonably believes to be
an entity owned or controlled by, or otherwise connected
to, the government of a covered foreign country.
Critical technology means—
(1)

Defense articles or defense services included on

the United States Munitions List set forth in the
International Traffic in Arms Regulations under subchapter
M of chapter I of title 22, Code of Federal Regulations;
(2)

Items included on the Commerce Control List set

forth in Supplement No. 1 to part 774 of the Export
Administration Regulations under subchapter C of chapter
VII of title 15, Code of Federal Regulations, and
controlled—
(i)

Pursuant to multilateral regimes, including for

reasons relating to national security, chemical and

25

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Register for publication. Formatting or other administrative changes may be made by the
Federal Register prior to publication.**

biological weapons proliferation, nuclear nonproliferation,
or missile technology; or
(ii)

For reasons relating to regional stability or

surreptitious listening;
(3)

Specially designed and prepared nuclear

equipment, parts and components, materials, software, and
technology covered by part 810 of title 10, Code of Federal
Regulations (relating to assistance to foreign atomic
energy activities);
(4)

Nuclear facilities, equipment, and material

covered by part 110 of title 10, Code of Federal
Regulations (relating to export and import of nuclear
equipment and material);
(5)

Select agents and toxins covered by part 331 of

title 7, Code of Federal Regulations, part 121 of title 9
of such Code, or part 73 of title 42 of such Code; or
(6)

Emerging and foundational technologies controlled

pursuant to section 1758 of the Export Control Reform Act
of 2018 (50 U.S.C. 4817).
Substantial or essential component means any component
necessary for the proper function or performance of a piece
of equipment, system, or service.
4.2102

Prohibition.

26

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Register for publication. Formatting or other administrative changes may be made by the
Federal Register prior to publication.**

(a)

Prohibited equipment, systems, or services.

On

or after August 13, 2019, agencies are prohibited from
procuring or obtaining, or extending or renewing 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, unless an
exception at paragraph (b) of this section applies or the
covered telecommunications equipment or services are
covered by a waiver described in 4.2104.
(b)

Exceptions.

This subpart does not prohibit

agencies from procuring or contractors from providing(1)

A service that connects to the facilities of a

third-party, such as backhaul, roaming, or interconnection
arrangements; or
(2)

Telecommunications equipment that cannot route

or redirect user data traffic or permit visibility into any
user data or packets that such equipment transmits or
otherwise handles.
(c)

Contracting Officers.

Contracting officers shall

not procure or obtain, or extend or renew a contract (e.g.,
exercise an option) to procure or obtain, any equipment,
system, or service that uses covered telecommunications

27

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Register for publication. Formatting or other administrative changes may be made by the
Federal Register prior to publication.**

equipment or services as a substantial or essential
component of any system, or as critical technology as part
of any system, unless an exception at paragraph (b) of this
section applies or the covered telecommunications equipment
or services are covered by a waiver described in 4.2104.
4.2103

Procedures.

(a)

Representations.

If an offeror provides an

affirmative response to the representations or discloses
information in accordance with paragraphs (c) and (d) of
the provision at 52.204-24, follow agency procedures.
(b)

Reporting.

If a contractor provides a report

pursuant to paragraph (d) of the clause at 52.204-25,
Prohibition on Contracting for Certain Telecommunications
and Video Surveillance Services or Equipment, follow agency
procedures.
4.2104

Waivers.

(a)

Executive agencies.

The head of an executive

agency may, on a one-time basis, waive the prohibition at
4.2102(a) with respect to a Government entity (e.g.,
requirements office, contracting office) that requests such
a waiver.
(1)

The waiver may be provided, for a period not to

extend beyond August 13, 2021, if the Government entity

28

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Register for publication. Formatting or other administrative changes may be made by the
Federal Register prior to publication.**

seeking the waiver submits to the head of the executive
agency—
(i)

A compelling justification for the

additional time to implement the requirements under
4.2102(a), as determined by the head of the executive
agency; and
(ii)

A full and complete laydown or description

of the presences of covered telecommunications or video
surveillance equipment or services in the relevant supply
chain and a phase-out plan to eliminate such covered
telecommunications or video surveillance equipment or
services from the relevant systems.
(2)

The head of the executive agency shall, not

later than 30 days after approval, submit to the
appropriate congressional committees the full and complete
laydown or description of the presences of covered
telecommunications or video surveillance equipment or
services in the relevant supply chain and the phase-out
plan to eliminate such covered telecommunications or video
surveillance equipment or services from the relevant
systems.
(b)

Director of National Intelligence.

The Director

of National Intelligence may provide a waiver if the

29

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Register for publication. Formatting or other administrative changes may be made by the
Federal Register prior to publication.**

Director determines the waiver is in the national security
interests of the United States.
4.2105

Solicitation provision and contract clause.

(a)

The contracting officer shall insert the

provision at 52.204-24, Representation Regarding Certain
Telecommunications and Video Surveillance Services or
Equipment—
(1)

In all solicitations for contracts; and

(2)

Under indefinite delivery contracts, in all

notices of intent to place an order, or solicitations for
an order (i.e., subpart 8.4 and 16.505).
(b)

The contracting officer shall insert the clause

at 52.204-25, Prohibition on Contracting for Certain
Telecommunications and Video Surveillance Services or
Equipment, in all solicitations and contracts.
PART 12—ACQUISITION OF COMMERCIAL ITEMS
4.

Amend section 12.301 by redesignating paragraphs

(d)(6) through (d)(11) as (d)(7) through (d)(12),
respectively, and adding a new paragraph (d)(6) to read as
follows:
12.301

Solicitation provisions and contract clauses for

acquisition of commercial items.
*

*

*

*

*

30

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(d)

*

(6)

*

*

Insert the provision at 52.204-24,

Representation Regarding Certain Telecommunications and
Video Surveillance Services or Equipment, as prescribed in
4.2105(a).
*

*

*

*

*

PART 13—SIMPLIFIED ACQUISITION PROCEDURES
5.

Amend section 13.201 by revising the heading and

paragraph (a), and adding paragraph (j) to read as follows:
13.201

General.

(a)

Agency heads are encouraged to delegate micro-

purchase authority (see 1.603-3).
*

*

*
(j)

*

*
On or after August 13, 2019, do 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, unless an exception
applies or a waiver is granted. (See subpart 4.21.)
PART 39—ACQUISITION OF INFORMATION TECHNOLOGY
6.

Amend section 39.101 by adding paragraph (f) to

read as follows:

31

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Register for publication. Formatting or other administrative changes may be made by the
Federal Register prior to publication.**

39.101
*

*

Policy.
*

*

(f)

*

On or after August 13, 2019, contracting officers

shall 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 on or after August
13, 2019, unless an exception applies or a waiver is granted.
(See subpart 4.21.)
PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
7.

Add sections 52.204-24 and 52.204-25 to read as

follows:
52.204-24

Representation Regarding Certain

Telecommunications and Video Surveillance Services or
Equipment.
As prescribed in 4.2105(a), insert the following provision:
REPRESENTATION REGARDING CERTAIN TELECOMMUNICATIONS
SERVICES
(a)

Definitions.

OR

AND

VIDEO SURVEILLANCE

EQUIPMENT (AUG 2019)

As used in this provision—

Covered telecommunications equipment or services,
Critical technology, and Substantial or essential component
have the meanings provided in clause 52.204-25, Prohibition

32

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Register for publication. Formatting or other administrative changes may be made by the
Federal Register prior to publication.**

on Contracting for Certain Telecommunications and Video
Surveillance Services or Equipment.
(b)

Prohibition.

Section 889(a)(1)(A) of the John S.

McCain National Defense Authorization Act for Fiscal Year
2019 (Pub. L. 115-232) prohibits the head of an executive
agency on or after August 13, 2019, from procuring or
obtaining, or extending or renewing 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.

Contractors are

not prohibited from providing—
(1)

A service that connects to the facilities of a

third-party, such as backhaul, roaming, or interconnection
arrangements; or
(2)

Telecommunications equipment that cannot route

or redirect user data traffic or permit visibility into any
user data or packets that such equipment transmits or
otherwise handles.
(c)
It [

Representation.

] will, [

The Offeror represents that—

] will not provide covered

telecommunications equipment or services to the Government

33

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Register for publication. Formatting or other administrative changes may be made by the
Federal Register prior to publication.**

in the performance of any contract, subcontract or other
contractual instrument resulting from this solicitation.
(d)

Disclosures.

If the Offeror has responded

affirmatively to the representation in paragraph (c) of
this provision, the Offeror shall provide the following
information as part of the offer—
(1)

All covered telecommunications equipment and

services offered (include brand; model number, such as
original equipment manufacturer (OEM) number, manufacturer
part number, or wholesaler number; and item description, as
applicable);
(2)

Explanation of the proposed use of covered

telecommunications equipment and services and any factors
relevant to determining if such use would be permissible
under the prohibition in paragraph (b) of this provision;
(3)

For services, the entity providing the covered

telecommunications services (include entity name, unique
entity identifier, and Commercial and Government Entity
(CAGE) code, if known); and
(4)

For equipment, the entity that produced the

covered telecommunications equipment (include entity name,
unique entity identifier, CAGE code, and whether the entity
was the OEM or a distributor, if known).

34

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Register for publication. Formatting or other administrative changes may be made by the
Federal Register prior to publication.**

(End of provision)
52.204-25

Prohibition on Contracting for Certain

Telecommunications and Video Surveillance Services or
Equipment.
As prescribed in 4.2105(b), insert the following clause:
PROHIBITION

ON

CONTRACTING

FOR

CERTAIN TELECOMMUNICATIONS

SURVEILLANCE SERVICES
(a)

Definitions.

OR

AND

VIDEO

EQUIPMENT (AUG 2019)

As used in this clause—

Covered foreign country means The People’s Republic of
China.
Covered telecommunications equipment or services
means(1)

Telecommunications equipment produced by Huawei

Technologies Company or ZTE Corporation (or any subsidiary
or affiliate of such entities);
(2)

For the purpose of public safety, security of

Government facilities, physical security surveillance of
critical infrastructure, and other national security
purposes, video surveillance and telecommunications
equipment produced by Hytera Communications Corporation,
Hangzhou Hikvision Digital Technology Company, or Dahua
Technology Company (or any subsidiary or affiliate of such
entities);

35

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Register for publication. Formatting or other administrative changes may be made by the
Federal Register prior to publication.**

(3)

Telecommunications or video surveillance

services provided by such entities or using such equipment;
or
(4)

Telecommunications or video surveillance

equipment or services produced or provided by an entity
that the Secretary of Defense, in consultation with the
Director of National Intelligence or the Director of the
Federal Bureau of Investigation, reasonably believes to be
an entity owned or controlled by, or otherwise connected
to, the government of a covered foreign country.
Critical technology means(1)

Defense articles or defense services included

on the United States Munitions List set forth in the
International Traffic in Arms Regulations under subchapter
M of chapter I of title 22, Code of Federal Regulations;
(2)

Items included on the Commerce Control List set

forth in Supplement No. 1 to part 774 of the Export
Administration Regulations under subchapter C of chapter
VII of title 15, Code of Federal Regulations, and
controlled—
(i)

Pursuant to multilateral regimes, including

for reasons relating to national security, chemical and

36

 This is a prepublication version of this interim rule, which has been provided to the Federal
Register for publication. Formatting or other administrative changes may be made by the
Federal Register prior to publication.**

biological weapons proliferation, nuclear nonproliferation,
or missile technology; or
(ii)

For reasons relating to regional stability

or surreptitious listening;
(3)

Specially designed and prepared nuclear

equipment, parts and components, materials, software, and
technology covered by part 810 of title 10, Code of
Federal Regulations (relating to assistance to foreign
atomic energy activities);
(4)

Nuclear facilities, equipment, and material

covered by part 110 of title 10, Code of Federal
Regulations (relating to export and import of nuclear
equipment and material);
(5)

Select agents and toxins covered by part 331 of

title 7, Code of Federal Regulations, part 121 of title 9
of such Code, or part 73 of title 42 of such Code; or
(6)

Emerging and foundational technologies

controlled pursuant to section 1758 of the Export Control
Reform Act of 2018 (50 U.S.C. 4817).
Substantial or essential component means any component
necessary for the proper function or performance of a piece
of equipment, system, or service.

37

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Register for publication. Formatting or other administrative changes may be made by the
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(b)

Prohibition.

Section 889(a)(1)(A) of the John S.

McCain National Defense Authorization Act for Fiscal Year
2019 (Pub. L. 115-232) prohibits the head of an executive
agency on or after August 13, 2019, from procuring or
obtaining, or extending or renewing 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.

The Contractor

is prohibited from providing to the Government 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, unless an exception at
paragraph (c) of this clause applies or the covered
telecommunication equipment or services are covered by a
waiver described in Federal Acquisition Regulation 4.2104.
(c)

Exceptions.

This clause does not prohibit

contractors from providing—
(1)

A service that connects to the facilities of a

third-party, such as backhaul, roaming, or interconnection
arrangements; or

38

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Register for publication. Formatting or other administrative changes may be made by the
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(2)

Telecommunications equipment that cannot route

or redirect user data traffic or permit visibility into any
user data or packets that such equipment transmits or
otherwise handles.
(d)
(1)

Reporting requirement.
In the event the Contractor identifies covered

telecommunications equipment or services used as a
substantial or essential component of any system, or as
critical technology as part of any system, during contract
performance, or the Contractor is notified of such by a
subcontractor at any tier or by any other source, the
Contractor shall report the information in paragraph (d)(2)
of this clause to the Contracting Officer, unless elsewhere
in this contract are established procedures for reporting
the information; in the case of the Department of Defense,
the Contractor shall report to the website at
https://dibnet.dod.mil.

For indefinite delivery contracts,

the Contractor shall report to the Contracting Officer for
the indefinite delivery contract and the Contracting
Officer(s) for any affected order or, in the case of the
Department of Defense, identify both the indefinite
delivery contract and any affected orders in the report
provided at https://dibnet.dod.mil.

39

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(2)

The Contractor shall report the following

information pursuant to paragraph (d)(1) of this clause:
(i)

Within one business day from the date of such

identification or notification:

the contract number; the

order number(s), if applicable; supplier name; supplier unique
entity identifier (if known); supplier Commercial and
Government Entity (CAGE) code (if known); brand; model number
(original equipment manufacturer number, manufacturer part
number, or wholesaler number); item description; and any
readily available information about mitigation actions
undertaken or recommended.
(ii)

Within 10 business days of submitting the

information in paragraph (d)(2)(i) of this clause:

any

further available information about mitigation actions
undertaken or recommended.

In addition, the Contractor shall

describe the efforts it undertook to prevent use or submission
of covered telecommunications equipment or services, and any
additional efforts that will be incorporated to prevent future
use or submission of covered telecommunications equipment or
services.
(e)

Subcontracts.

The Contractor shall insert the

substance of this clause, including this paragraph (e), in all

40

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Register for publication. Formatting or other administrative changes may be made by the
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subcontracts and other contractual instruments, including
subcontracts for the acquisition of commercial items.
(End of clause)
8.

Amend section 52.212-5 by—

a.

Revising the date of the clause;

b.

Redesignating paragraphs (a)(3) through (a)(5) as

paragraphs (a)(4) through (a)(6) and adding a new paragraph
(a)(3);
c.

Redesignating paragraphs (e)(1)(iv) through

(e)(1)(xxii) as (e)(1)(v) through (e)(1)(xxiii), and adding a
new paragraph (e)(1)(iv);
d.

Revising the date of Alternate II; and

e.

In Alternate II, redesignating paragraphs

(e)(1)(ii)(D) through (e)(1)(ii)(T)

as (e)(1)(ii)(E) through

(e)(1)(ii)(U), and adding a new paragraph (e)(1)(ii)(D).
The revisions and additions read as follows:
52.212-5

Contract Terms and Conditions Required To Implement

Statutes or Executive Orders—Commercial Items.
*

*

*

*

*

CONTRACT TERMS

AND

CONDITIONS REQUIRED

TO

IMPLEMENT STATUTES

ORDERS—COMMERCIAL ITEMS (AUG 2019)
(a)

*

*

*

41

OR

EXECUTIVE

 This is a prepublication version of this interim rule, which has been provided to the Federal
Register for publication. Formatting or other administrative changes may be made by the
Federal Register prior to publication.**

(3)

52.204-25, Prohibition on Contracting for Certain

Telecommunications and Video Surveillance Services or
Equipment. (AUG 2019) (Section 889(a)(1)(A) of Pub. L. 115232).
*

*

*

*

*

(e)(1)

*

(iv)

*

*

52.204-25, Prohibition on Contracting for

Certain Telecommunications and Video Surveillance Services or
Equipment. (AUG 2019) (Section 889(a)(1)(A) of Pub. L. 115232).
*

*

*

*

*

Alternate II (AUG 2019).
*

*

*

*

*

(e)(1)

*

*

*

(ii)

*

*

(D)

*

52.204-25, Prohibition on Contracting for

Certain Telecommunications and Video Surveillance Services or
Equipment. (AUG 2019) (Section 889(a)(1)(A) of Pub. L. 115232).
*

*

*

*

9.

*

Amend section 52.213-4 by—

a.

Revising the date of the clause;

42

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Register for publication. Formatting or other administrative changes may be made by the
Federal Register prior to publication.**

b.

Redesignating paragraphs (a)(1)(iii) through

(a)(1)(viii) as (a)(1)(iv) through (a)(1)(ix), and adding a
new paragraph (a)(1)(iii); and
c.

In paragraph (a)(2)(viii) removing “(JAN 2019)”

and adding “(AUG 2019)” in its place.
The revision and addition read as follows:
52.213-4

Terms and Conditions—Simplified Acquisitions (Other

Than Commercial Items).
*

*

TERMS

*

*

*

AND

CONDITIONS—SIMPLIFIED ACQUISITIONS (OTHER THAN COMMERCIAL ITEMS)
(AUG 2019)

(a)

*

(1)

*
*

*
*

(iii)

*
52.204-25, Prohibition on Contracting for

Certain Telecommunications and Video Surveillance Services or
Equipment. (AUG 2019) (Section 889(a)(1)(A) of Pub. L. 115232).
*

*

*

*

10.

*
Amend section 52.244-6 by—

a.

Revising the date of the clause; and

b.

Redesignating paragraphs (c)(1)(vi) through

(c)(1)(xix) as (c)(1)(vii) through (c)(1)(xx), and adding a
new paragraph (c)(1)(vi).

43

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Register for publication. Formatting or other administrative changes may be made by the
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The revision and addition reads as follows:
52.244-6
*

*

*

Subcontracts for Commercial Items.
*

*
SUBCONTRACTS

*

*

*

*

FOR

COMMERCIAL ITEMS (AUG 2019)

*

(c)(1)

*

(vi)

*

*

52.204-25, Prohibition on Contracting for

Certain Telecommunications and Video Surveillance Services or
Equipment. (AUG 2019) (Section 889(a)(1)(A) of Pub. L. 115232).
*

*

*

*

*

Billing Code 6820-EP

44