By Government Contracts Editorial Staff
The Department of Defense has issued an interim rule amending the Defense Federal Acquisition Regulation Supplement related to the procurement of covered defense telecommunications equipment or services. Specifically, the rule prohibits the procurement of any equipment, system, or service to carry out the DoD nuclear deterrence or homeland defense missions that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as a critical technology as a part of any system. Covered telecommunications equipment or services includes telecommunications equipment or services from certain Chinese entities, including their subsidiaries and affiliates, and from any other entities that the Secretary of Defense reasonably believes to be owned or controlled by or otherwise connected to, the government of the People’s Republic of China or the Russian Federation. The objective of this rule is to increase security of systems and critical technology that is part of any system used to carry out the nuclear deterrence and homeland defense missions of DoD by prohibiting the use of telecommunications equipment or services from certain Chinese entities, including their subsidiaries and affiliates, and from any other entities that the Secretary of Defense reasonably believes to be owned or controlled by or otherwise connected to, the government of China or Russia.
Implementation. The rule implements section 1656 of the National Defense Authorization Act for Fiscal Year 2018 (PL 115-91) and section 889(a) of the NDAA for FY 2019 (PL 115-232), and is structured to align with the FAR implementation of the section 889(a)(1)(A) governmentwide prohibition in Federal Acquisition Circular 2020-03. Accordingly, to implement the section 1656 prohibition and the DoD-specific procedures associated with the 889(a)(1)(A) prohibition in the FAR, this rule adds: DFARS Subpart 204.21, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment; the solicitation provision at DFARS 252.204-7016, Covered Defense Telecommunications Equipment or Services—Representation; the DFARS 252.204-7017 provision, Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services—Representation; and the clause at DFARS 252.204-7018, Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services. The section 889(a)(1)(A) prohibition remains implemented in the FAR, and the DoD-specific procedures for handling representations from offerors and reports from contractors in this rule apply to both the section 1656 and 889 prohibitions.
Applicability. Contracting officers must include the DFARS 252.204-7016 and DFARS 252.204-7017 provisions, as prescribed in DFARS 204.2105, in solicitations issued on or after December 31, 2019, and in solicitations issued before December 31, 2019, provided the resulting award occurs on or after this date. COs must include the DFARS 252.204-7018 clause in all awards made on or after December 31, 2019. In addition, COs must modify, in accordance with FAR 1.108(d), existing indefinite-delivery contracts, blanket purchase agreements, and basic ordering agreements to include the DFARS clause for future orders or calls, prior to placing any future orders or calls. The rule applies to procurements at or below the simplified acquisition threshold, and to commercial items acquisitions, including commercially available off-the-shelf items. The rule went into effect on December 31, 2019. Comments on this interim rule, identified by DFARS Case 2018-D022, are due March 2, 2019. For the text of the rule, see ¶70,017.24.
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