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THE FAR COUNCIL’S SECOND INTERIM RULE IMPLEMENTING NDAA SECTION 889(A)(1)(B): AND THE HITS KEEP COMING!
52.204-24(d)(2) is required. is required. Like the Like hits produced the hits produced by DJ Khaled, by DJ Khaled, ment or services ment or services or any equipment, or any equipment, 52.204-24(d)(2) the FAR the Council FAR offers Council “another offers “another one.” one.” system, or system, service orthat service usesthat covered uses covered The newThe language new language in FAR 52.204in FAR 52.204As covered As covered extensively extensively in this blog, in this blog, telecommunications telecommunications equipment equipment or or 26(c)(2) 26(c)(2) tracks the tracks current therepresencurrent represenfederal contractors federal contractors have been—or have been—or services.services. AlthoughAlthough not a panacea not a panacea for for tation under tation FAR under 52.204-24(d)(2). FAR 52.204-24(d)(2). should have should been have (you been have (you been have beenthe reporting the reporting and compliance and compliance burdens burdens In effect,Inthe effect, Second the Interim SecondRule Interim Rule working working toward compliance, toward compliance, haven’t haven’t created by created the initial by the implementation initial implementation limits thelimits FAR the 52.204-24(d)(2) FAR 52.204-24(d)(2) repre- repreyou?)—spending you?)—spending the closing thedays closing daysof Section of B, Section eliminating B, eliminating the the sentation sentation requirement requirement to offerors to offerors of summer of summer ensuringensuring compliance compliance redundancy redundancy of contractors of contractors making making covered use covered telecommunication telecommunication with the with July the 14, 2020 July 14, Interim 2020Rule Interim Rule the Section the BSection representations B representations and cer- andthat cer-use that equipment equipment or services or services or use any or use any implementing implementing Section 889(a)(1)(B) Section 889(a)(1)(B) tifications tifications on an offer-by-offer on an offer-by-offer basis is basis is equipment, system, system, or service orthat service that (“Section(“Section B”) of theB”) National of the National Defense Defense a step inathe step right in the direction. right direction. What areWhatequipment, are uses covered uses covered telecommunications telecommunications Authorization Authorization Act for fiscal Act for year fiscal year the Second the Interim SecondRule’s Interim specifics, Rule’s specifics, equipment or services, or services, as offerors as offerors 2019. Section 2019. B Section prohibits B prohibits the governthe governand whatand does what thedoes Rule the mean Rule formean for equipment representing representing such usesuch mustuse stillmust still ment from ment entering from entering into a contract into a contract contractors? contractors? Find out Find below. out below. provide “additional provide “additional disclosure disclosure with an entity with an that entity usesthat covered uses covered information” under 52.204-24(e)(2). under 52.204-24(e)(2). telecommunications telecommunications equipment equipment or or What’s Going What’s On—What Going On—What Does theDoes the information” But a contractor But a contractor that represents that represents it it servicesservices as a substantial as a substantial or essential or essential Second Interim SecondRule Interim Entail? RuleSpecifiEntail? Specifi“does not” “does usenot” covered use covered telecommunitelecommunicomponent component of any system, of any or system, as or as cally, thecally, Second the Interim SecondRule Interim updates Rule updates cations equipment cations equipment or services or services under under critical technology critical technology as part of asany part of anySAM to add SAMantoannual add anrepresentation annual representation FAR 52.204-26(c)(2) will no longer will no longer system, and system, requires, and requires, among other among other in new paragraph in new paragraph (c)(2) of (c)(2) FAR of FAR FAR 52.204-26(c)(2) have be able to orto bemake able to themake reprethe repreaffirmative affirmative obligations, obligations, for contracfor contrac52.204-26 52.204-26 and paragraph and paragraph (v)(2)(ii) of (v)(2)(ii)have of to or sentation sentation under FAR under 52.204-24(d)(2). FAR 52.204-24(d)(2). tors to represent—after tors to represent—after conducting conducting a FARa 52.212-3. FAR 52.212-3. This newThis paragraph new paragraph What’s not What’s clear,not however, clear, however, is whether is whether “reasonable “reasonable inquiry”—that inquiry”—that they do/do they do/do now requires now requires an offeror antoofferor represent, to represent, the representations the representations requiredrequired under under not use covered not use covered telecommunications telecommunications after conducting after conducting a reasonable a reasonable inquiry, inquiry, FAR 52.204-26 FAR 52.204-26 will remain willinremain in equipment equipment or services or services in their in their whether whether it “does” itor“does” “does or not” “does use not” use solicitations solicitations after October after October 26, 2020,26, 2020, respective respective businessbusiness operations. operations. covered telecommunications covered telecommunications equip- equipor whether or whether they willthey needwill to be need made to be made In light of Inthe light Interim of theRule’s Interim broad Rule’s broad ment or services ment or services or any equipment, or any equipment, solely through solely through SAM. SAM. scope and scope mandatory and mandatory accounting accounting of of system, or system, service orthat service usesthat covered uses covered a contractor’s a contractor’s operations, operations, Section Section telecommunications telecommunications equipment equipment or or Call Me—Is Calla Me—Is “Reasonable a “Reasonable Inquiry” ReInquiry” ReB’s compliance B’s compliance mandatemandate presentspresents services:services: quiredMaking Beforethe Making New the Annual New Annual another significant another significant regulatory regulatory burden burden • If an offeror • If anrepresents offeror represents it “does not” it “doesquired not” Before Representation? Representation? Yes. In accordance Yes. In accordance for contractors for contractors to shoulder. to shoulder. But con-But conuse covered use telecommunications covered telecommunications with the with Second the Interim SecondRule, Interim offerors Rule, offerors tractors tractors should fear should not, fear because not, because the the equipment equipment or services, or services, this annual this annual mustSAM consult to validate SAM to whether validate whether FAR Council FAR has Council heard has their heard plaintive their plaintive representation representation is sufficient, is sufficient, and the andmust the consult the equipment or services or services in use in use wails and wails responded and responded on August on27, August 27,offer-by-offer offer-by-offer representation representation at FAR at the FARequipment are from are an entity from an providing entity providing covered covered 2020, with 2020, a Second with a Interim SecondRule Interim Rule 52.204-24(d)(2) 52.204-24(d)(2) (e., that the (e., contracthat the contractelecommunications telecommunications equipment equipment or or implementing implementing new requirements new requirements for fortor, after tor, a reasonable after a reasonable inquiry, repreinquiry, represervices.services. In addition, In addition, “offerors“offerors will will Section B Section compliance. B compliance. sents it does/does sents it does/does not use covered not use covered conduct conduct a reasonable a reasonable inquiry as inquiry to as to telecommunications telecommunications equipment equipment or or whether whether they use they covered use telecommucovered telecommuIn an effort In an to effort “reduce[ to “reduce[ ] the informa] the informa-services)services) is not required. is not required. equipment equipment or services or services or or tion collection tion collection burden imposed burden imposed on the on•the On the •other On the hand, other if the hand, offeror if the offerornicationsnications any equipment, any equipment, system, or system, service or that service that public,” the public, Second ” the Interim SecondRule, Interim effecRule, effecrepresents represents it “does”ituse “does” covered use covered uses covered uses telecommunications covered telecommunications tive October tive 26, October 2020,26, is set 2020, to is update set to update telecommunications telecommunications or services, or services, or or equipment equipment or services.” or services.” AlthoughAlthough the System the for System Award forManagement Award Management has not made has not any made representation any representation clear guidance clear guidance on what on measures what measures fulful(“SAM”) to (“SAM”) permittoeach permit registrant each registrant to toin response in response to FAR 52.204-26(c)(2) to FAR 52.204-26(c)(2) fill the “reasonable fill the “reasonable inquiry” standard inquiry” standard representrepresent annually—rather annually—rather than on an than on an or 52.212-3(v)(2)(ii), or 52.212-3(v)(2)(ii), then the then the remainabsent, notablythe absent, breadth the breadth offer-by-offer offer-by-offer basis—whether basis—whether it uses it usesoffer-by-offer offer-by-offer representation representation at FAR atremain FAR notably and depth and of depth this inquiry of thiswill inquiry vary will vary covered telecommunications covered telecommunications equip- equip16 | SEPTEMBER2020
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