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THE FAR COUNCIL’S SECOND INTERIM RULE IMPLEMENTING NDAA SECTION 889(A)(1)(B): AND THE HITS KEEP COMING!
Like the hits produced by DJ Khaled, ment or services or any equipment, Like the hits produced by DJ Khaled, ment or services or any equipment, 52.204-24(d)(2) is required.52.204-24(d)(2) is required. the FAR Council offers “another one.” system, or service that uses covered the FAR Council offers “another one.” system, or service that uses covered As covered extensively in this blog, telecommunications equipment or The new language in FAR 52.204 As covered extensively in this blog, telecommunications equipment or The new language in FAR 52.204- - federal contractors have been—or services. Although not a panacea for 26(c)(2) tracks the current represen federal contractors have been—or services. Although not a panacea for 26(c)(2) tracks the current represenshould have been (you have been the reporting and compliance burdens tation under FAR 52.204-24(d)(2). should have been (you have been the reporting and compliance burdens tation under FAR 52.204-24(d)(2). working toward compliance, haven’t created by the initial implementation In effect, the Second Interim Rule working toward compliance, haven’t created by the initial implementation In effect, the Second Interim Rule you?)—spending the closing days of Section B, eliminating the you?)—spending the closing days of Section B, eliminating the limits the FAR 52.204-24(d)(2) reprelimits the FAR 52.204-24(d)(2) repreof summer ensuring compliance of summer ensuring compliance redundancy of contractors making sentation requirement to offerors redundancy of contractors making sentation requirement to offerors with the July 14, 2020 Interim Rule the Section B representations and certhat use covered telecommunication with the July 14, 2020 Interim Rule the Section B representations and certhat use covered telecommunication implementing Section 889(a)(1)(B) tifications on an offer-by-offer basis is equipment or services or use any implementing Section 889(a)(1)(B) tifications on an offer-by-offer basis is equipment or services or use any (“Section B”) of the National Defense a step in the right direction. What are equipment, system, or service that (“Section B”) of the National Defense a step in the right direction. What are equipment, system, or service that Authorization Act for fiscal year Authorization Act for fiscal year the Second Interim Rule’s specifics, uses covered telecommunications the Second Interim Rule’s specifics, uses covered telecommunications 2019. Section B prohibits the governand what does the Rule mean for 2019. Section B prohibits the governand what does the Rule mean for equipment or services, as offerors equipment or services, as offerors ment from entering into a contract contractors? Find out below. ment from entering into a contract contractors? Find out below. representing such use must still representing such use must still with an entity that uses covered with an entity that uses covered provide “additional disclosure provide “additional disclosure telecommunications equipment or What’s Going On—What Does the telecommunications equipment or What’s Going On—What Does the information” under 52.204-24(e)(2). information” under 52.204-24(e)(2). services as a substantial or essential Second Interim Rule Entail? SpecifiBut a contractor that represents it services as a substantial or essential Second Interim Rule Entail? SpecifiBut a contractor that represents it component of any system, or as component of any system, or as cally, the Second Interim Rule updates “does not” use covered telecommuni cally, the Second Interim Rule updates “does not” use covered telecommunicritical technology as part of any SAM to add an annual representation cations equipment or services under critical technology as part of any SAM to add an annual representation cations equipment or services under system, and requires, among other in new paragraph (c)(2) of FAR system, and requires, among other in new paragraph (c)(2) of FAR FAR 52.204-26(c)(2) will no longer FAR 52.204-26(c)(2) will no longer affirmative obligations, for contrac52.204-26 and paragraph (v)(2)(ii) of have to or be able to make the repre affirmative obligations, for contrac52.204-26 and paragraph (v)(2)(ii) of have to or be able to make the repretors to represent—after conducting a FAR 52.212-3. This new paragraph sentation under FAR 52.204-24(d)(2). tors to represent—after conducting a FAR 52.212-3. This new paragraph sentation under FAR 52.204-24(d)(2). “reasonable inquiry”—that they do/do now requires an offeror to represent, What’s not clear, however, is whether “reasonable inquiry”—that they do/do now requires an offeror to represent, What’s not clear, however, is whether not use covered telecommunications after conducting a reasonable inquiry, the representations required under not use covered telecommunications after conducting a reasonable inquiry, the representations required under equipment or services in their equipment or services in their whether it “does” or “does not” use FAR 52.204-26 will remain in whether it “does” or “does not” use FAR 52.204-26 will remain in respective business operations. respective business operations. covered telecommunications equipsolicitations after October 26, 2020, covered telecommunications equipsolicitations after October 26, 2020, In light of the Interim Rule’s broad ment or services or any equipment, or whether they will need to be made In light of the Interim Rule’s broad ment or services or any equipment, or whether they will need to be made scope and mandatory accounting of system, or service that uses covered solely through SAM. scope and mandatory accounting of system, or service that uses covered solely through SAM. a contractor’s operations, Section telecommunications equipment or a contractor’s operations, Section telecommunications equipment or B’s compliance mandate presents services: B’s compliance mandate presents services: Call Me—Is a “Reasonable Inquiry” ReCall Me—Is a “Reasonable Inquiry” Reanother significant regulatory burden • If an offeror represents it “does not” quired Before Making the New Annual another significant regulatory burden • If an offeror represents it “does not” quired Before Making the New Annual for contractors to shoulder. But conuse covered telecommunications Representation? Yes. In accordance for contractors to shoulder. But conuse covered telecommunications Representation? Yes. In accordance tractors should fear not, because the equipment or services, this annual with the Second Interim Rule, offerors tractors should fear not, because the equipment or services, this annual with the Second Interim Rule, offerors FAR Council has heard their plaintive representation is sufficient, and the must consult SAM to validate whether FAR Council has heard their plaintive representation is sufficient, and the must consult SAM to validate whether wails and responded on August 27, offer-by-offer representation at FAR the equipment or services in use wails and responded on August 27, offer-by-offer representation at FAR the equipment or services in use 2020, with a Second Interim Rule 2020, with a Second Interim Rule 52.204-24(d)(2) (e., that the contracare from an entity providing covered 52.204-24(d)(2) (e., that the contracare from an entity providing covered implementing new requirements for tor, after a reasonable inquiry, repretelecommunications equipment or implementing new requirements for tor, after a reasonable inquiry, repretelecommunications equipment or Section B compliance.Section B compliance. sents it does/does not use covered services. In addition, “offerors will sents it does/does not use covered services. In addition, “offerors will telecommunications equipment or conduct a reasonable inquiry as to telecommunications equipment or conduct a reasonable inquiry as to In an effort to “reduce[ ] the informaservices) is not required. In an effort to “reduce[ ] the informaservices) is not required. whether they use covered telecommuwhether they use covered telecommution collection burden imposed on the public,” the Second Interim Rule, effective October 26, 2020, is set to update the System for Award Management (“SAM”) to permit each registrant to represent annually—rather than on an offer-by-offer basis—whether it uses covered telecommunications equip• On the other hand, if the offeror represents it “does” use covered telecommunications or services, or has not made any representation in response to FAR 52.204-26(c)(2) or 52.212-3(v)(2)(ii), then the offer-by-offer representation at FAR nications equipment or services or any equipment, system, or service that uses covered telecommunications equipment or services.” Although clear guidance on what measures fulfill the “reasonable inquiry” standard remain notably absent, the breadth and depth of this inquiry will vary tion collection burden imposed on the public,” the Second Interim Rule, effective October 26, 2020, is set to update the System for Award Management (“SAM”) to permit each registrant to represent annually—rather than on an offer-by-offer basis—whether it uses covered telecommunications equip• On the other hand, if the offeror represents it “does” use covered telecommunications or services, or has not made any representation in response to FAR 52.204-26(c)(2) or 52.212-3(v)(2)(ii), then the offer-by-offer representation at FAR nications equipment or services or any equipment, system, or service that uses covered telecommunications equipment or services.” Although clear guidance on what measures fulfill the “reasonable inquiry” standard remain notably absent, the breadth and depth of this inquiry will vary
among entities. Larger entities with on the Second Interim Rule are due representations and certifications among entities. Larger entities with on the Second Interim Rule are due representations and certifications an international presence will require on or before October 26, 2020.an international presence will require on or before October 26, 2020. in good faith, all federal contractors in good faith, all federal contractors a more searching inquiry throughout a more searching inquiry throughout should be working diligently with should be working diligently with their IT and facility security offices, I Won’t Back Down – Some—But Not their internal resources to determine their IT and facility security offices, I Won’t Back Down – Some—But Not their internal resources to determine while smaller contractors should while smaller contractors should Complete—Relief At bottom, the Complete—Relief At bottom, the whether covered telecommunications whether covered telecommunications adopt a risk-based approach.adopt a risk-based approach. Second Interim Rule provides some equipment or services and prohibited Second Interim Rule provides some equipment or services and prohibited administrative relief for contractors, surveillance cameras are being used administrative relief for contractors, surveillance cameras are being used Ch-ch-ch-ch-changes—Should Ch-ch-ch-ch-changes—Should but the tune remains the same when by their respective organizations. but the tune remains the same when by their respective organizations. Contractors Expect More Revisions to it comes to the burdensome Contractors Expect More Revisions to it comes to the burdensome process process the Section B Implementation?the Section B Implementation? Yes. Yes. of validating compliance with Section of validating compliance with Section Because implementation of the broad B. And it does not answer any of the Because implementation of the broad B. And it does not answer any of the prohibition is an iterative process, notable informational deficiencies prohibition is an iterative process, notable informational deficiencies the Second Interim Rule is not the in the July 2020 Interim Rule (i.e., de the Second Interim Rule is not the in the July 2020 Interim Rule (i.e., deonly interim revision expected before fining “use” of covered telecom equip only interim revision expected before fining “use” of covered telecom equipthe final rule. Among other possible ment and services and what meets the final rule. Among other possible ment and services and what meets revisions, the most noteworthy is the the reasonable inquiry standard). revisions, the most noteworthy is the the reasonable inquiry standard). potential expansion of the Section B One hopes these issues will be potential expansion of the Section B One hopes these issues will be prohibition to affiliates, parents, and addressed in future revisions. In the prohibition to affiliates, parents, and addressed in future revisions. In the subsidiaries of offerors. But if it’s meantime, however, federal contracsubsidiaries of offerors. But if it’s meantime, however, federal contracany solace to contractors, the FAR tors must still meet the obligation any solace to contractors, the FAR tors must still meet the obligation Council appears to be listening to to conduct a reasonable inquiry into Council appears to be listening to to conduct a reasonable inquiry into industry feedback on implementation whether covered telecommunications industry feedback on implementation whether covered telecommunications of Section B. Comments on the of Section B. Comments on the equipment or services are being equipment or services are being Interim Rule are due on or before Interim Rule are due on or before used in their lines of business. used in their lines of business. September 14, 2020, and comments Accordingly, to execute the required September 14, 2020, and comments Accordingly, to execute the required
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