Government Contracts Rule Adds New Representation on Covered Telecommunications
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Monday, January 13, 2020

Rule Adds New Representation on Covered Telecommunications

By Government Contracts Editorial Staff

Federal Acquisition Circular 2020-03 contains one interim rule amending the Federal Acquisition Regulation: Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment (FAR Case 2018-017). The rule implements Section 889(a)(1)(A) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (PL 115-232), which prohibits the head of an executive agency, on or after August 13, 2019, from procuring from the People’s Republic of China, 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.

Information Collection Burden. FAC 2019-05 contained a prior FAR Case 2018-017 interim rule. This second rule adds a new solicitation provision at FAR 52.204-26, Covered Telecommunications Equipment or Services—Representation, which requires an offeror to represent annually whether it provides covered telecommunications equipment or services as a part of its offered products or services to the government. To reduce the information collection burden, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council have updated the System for Award Management to include a similar representation. Offerors must consult SAM to validate whether the equipment or services they are offering are from an entity providing equipment or services that are covered telecommunications equipment or services. If an offeror represents “does not,” it need not complete the offer-by-offer representation at FAR 52.204-24, Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment. If the offeror represents “does,” or has not made any representation in FAR 52.204-26 or FAR 52.212-3(v), Offeror Representations and Certifications—Commercial Items, it must complete the representation at FAR 52.204-24. The annual representation required by this rule will be used in all solicitations, except in contracts and subcontracts where amounts do not exceed the simplified acquisition threshold, commercial item contracts, and contracts for the acquisition of commercially available off-the-shelf items.

Additional Changes. This interim rule also amends FAR 4.2103 to provide procedures for contracting officers regarding the new FAR 52.204-24 and FAR 52.204-26 representations. The rule also makes conforming changes by adding FAR 52.204-26 to the lists of representations and certifications in FAR 52.204-8 and FAR 4.1202. Finally, the rule amends the prescription for FAR 52.204-24 at FAR 4.2105(a)(2) to clarify that FAR Subpart 8.4 and FAR 16.505 are examples of the procedures that may be used to place an order. The FAC also contains a Small Entity Compliance Guide, which indicates that a regulatory flexibility analysis has been prepared for this rule. Comments on the rule, which went into effect on December 13, 2019, are due February 11, 2020. For the text of FAC 2020-03, see ¶70,002.214.

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