Subpart 4.21 Prohibition on Contracting for

Certain Telecommunications and Video

Surveillance Services or Equipment

Parent topic: Part 4 - Administrative and Information Matters

4.2100 Scope of part.

This subpart implements paragraphs (a)(1)(A) and (a)(1)(B) 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—

Backhaul means intermediate links between the core network, or backbone network, and the small

subnetworks at the edge of the network (e.g., connecting cell phones/towers to the core telephone

network). Backhaul can be wireless (e.g., microwave) or wired (e.g., fiber optic, coaxial cable,

Ethernet).

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);

(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

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).

Interconnection arrangements means arrangements governing the physical connection of two or

more networks to allow the use of another's network to hand off traffic where it is ultimately

delivered (e.g., connection of a customer of telephone provider A to a customer of telephone

company B) or sharing data and other information resources.

Reasonable inquiry means an inquiry designed to uncover any information in the entity's possession

about the identity of the producer or provider of covered telecommunications equipment or services

used by the entity that excludes the need to include an internal or third-party audit.

Roaming means cellular communications services (e.g., voice, video, data) received from a visited

network when unable to connect to the facilities of the home network either because signal coverage

is too weak or because traffic is too high.

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.

(a) Prohibited equipment, systems, or services. 

(1) 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.

(2) On or after August 13, 2020, agencies are prohibited from entering into a contract, or extending
or renewing a contract, with an entity that uses 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. This prohibition applies to the use of covered telecommunications equipment or services,

regardless of whether that use is in performance of work under a Federal contract.

(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. Unless an exception at paragraph (b) of this section applies or the covered

telecommunications equipment or service is covered by a waiver described in 4.2104, Contracting

Officers shall not—

(1) 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 equipment or services as a

substantial or essential component of any system, or as critical technology as part of any system; or

(2) Enter into a contract, or extend or renew a contract, with an entity that uses 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.

(d) Recording prohibitions in the System for Award Management (SAM).

(1) Prohibitions on purchases of products or services produced or provided by entities identified in

paragraphs (1) and (2) of the definition of "covered telecommunications equipment or services"

(including known subsidiaries or affiliates) at 4.2101 will be recorded in SAM (see 9.404).

(2) Prohibitions on purchases of products or services produced or provided by entities identified

pursuant to paragraph (4) of the definition of "covered telecommunications equipment or services"

(including known subsidiaries or affiliates) at 4.2101 are recorded by the Department of Defense in

SAM (see 9.404).

4.2103 Procedures.

(a) Representations.

(1)

(i) If the offeror selects "does not" in paragraphs (c)(1) and/or (c)(2) of the provision at 52.204-26 or

in paragraphs (v)(2)(i) and/or (v)(2)(ii) of the provision at 52.212-3, the contracting officer may rely

on the "does not" representation(s), unless the contracting officer has reason to question the

representation. If the contracting officer has a reason to question the representation, the contracting

officer shall follow agency procedures.
(ii) If the offeror selects "does" in paragraph (c)(1) of the provision at 52.204-26 or paragraph

(v)(2)(i) of the provision at 52.212-3, the offeror will be required to complete the representation in

paragraph (d)(1) of the provision at 52.204-24.

(iii) If the offeror selects "does" in paragraph (c)(2) of the provision at 52.204-26 or paragraph

(v)(2)(ii) of the provision at 52.212-3, the offeror will be required to complete the representation in

paragraph (d)(2) of the provision at 52.204-24.

(2)

(i) If the offeror selects "will not" in paragraph (d)(1) of the provision at 52.204-24 or "does not" in

paragraph (d)(2) of the provision at 52.204-24, the contracting officer may rely on the

representations, unless the contracting officer has reason to question the representations. If the

contracting officer has a reason to question the representations, the contracting officer shall follow

agency procedures.

(ii) If an offeror selects "will" in paragraph (d)(1) of the provision at 52.204-24, the offeror must

provide the information required by paragraph (e)(1) of the provision at 52.204-24, and the

contracting officer shall follow agency procedures.

(iii) If an offeror selects "does" in paragraph (d)(2) of the provision at 52.204-24, the offeror must

complete the disclosure at paragraph (e)(2) of the provision at 52.204-24, and the contracting officer

shall 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) Waiver. The waiver may be provided, for a period not to extend beyond August 13, 2021 for the

prohibition at 4.2102(a)(1), or beyond August 13, 2022 for the prohibition at 4.2102(a)(2), if the

Government official, on behalf of the entity, 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) Executive agency waiver requirements for the prohibition at 4.2102(a)(2). Before the head of an

executive agency can grant a waiver to the prohibition at 4.2102(a)(2), the agency must—
(i) Have designated a senior agency official for supply chain risk management, responsible for

ensuring the agency effectively carries out the supply chain risk management functions and

responsibilities described in law, regulation, and policy;

(ii) Establish participation in an information-sharing environment when and as required by the

Federal Acquisition Security Council (FASC) to facilitate interagency sharing of relevant acquisition

supply chain risk information;

(iii) Notify and consult with the Office of the Director of National Intelligence (ODNI) on the waiver

request using ODNI guidance, briefings, best practices, or direct inquiry, as appropriate; and

(iv) Notify the ODNI and the FASC 15 days prior to granting the waiver that it intends to grant the

waiver.

(3) Waivers for emergency acquisitions.

(i) In the case of an emergency, including a declaration of major disaster, in which prior notice and

consultation with the ODNI and prior notice to the FASC is impracticable and would severely

jeopardize performance of mission-critical functions, the head of an agency may grant a waiver

without meeting the notice and consultation requirements under 4.2104(a)(2)(iii) and

4.2104(a)(2)(iv) to enable effective mission critical functions or emergency response and recovery.

(ii) In the case of a waiver granted in response to an emergency, the head of an agency granting the

waiver must—

(A) Make a determination that the notice and consultation requirements are impracticable due to an

emergency condition; and

(B) Within 30 days of award, notify the ODNI and the FASC of the waiver issued under emergency

conditions in addition to the waiver notice to Congress under 4.2104(a)(4).

(4) Waiver notice.

(i) For waivers to the prohibition at 4.2102(a)(1), the head of the executive agency shall, not later

than 30 days after approval—

(A) Submit in accordance with agency procedures to the appropriate congressional committees the

full and complete laydown of the presences of covered telecommunications or video surveillance

equipment or services in the relevant supply chain; and

(B) The phase-out plan to eliminate such covered telecommunications or video surveillance

equipment or services from the relevant systems.

(ii) For waivers to the prohibition at 4.2102(a)(2), the head of the executive agency shall, not later

than 30 days after approval submit in accordance with agency procedures to the appropriate

congressional committees—

(A) An attestation by the agency that granting of the waiver would not, to the agency's knowledge

having conducted the necessary due diligence as directed by statute and regulation, present a

material increase in risk to U.S. national security;

(B) The full and complete laydown of the presences of covered telecommunications or video

surveillance equipment or services in the relevant supply chain, to include a description of each
category of covered technology equipment or services discovered after a reasonable inquiry, as well

as each category of equipment, system, or service used by the entity in which such covered

technology is found after conducting a reasonable inquiry; and

(C) 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 Director determines the waiver is in the national security interests of the United States.

4.2105 Solicitation provisions 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 (e.g., 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.

(c) The contracting officer shall insert the provision at 52.204-26, Covered Telecommunications

Equipment or Services-Representation, in all solicitations.