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  6. MV-2020-10

Acquisition letter MV-2020-10: Workforce guidance on FY2019 NDAA Section 889 “Part B”

MV-2020-10
August 13, 2020
MEMORANDUM FOR THE GSA ACQUISITION WORKFORCE
FROM AND DIGITALLY SIGNED BY: Jeffrey A. Koses, Senior Procurement Executive, Office of Acquisition Policy
SUBJECT: Workforce guidance on FY2019 NDAA Section 889 “Part B”

On this page:

  1. Purpose.
  2. Background.
  3. Effective period.
  4. Applicability.
  5. Requirements.
  6. Workforce training.
  7. Points of contact.
  8. Attachments.

1. Purpose.

The purpose of this Acquisition Letter (AL) is to provide implementation instructions for the recent interim Federal Acquisition Regulation (FAR) rule (the FAR rule; FAR Case 2019-009) on Section 889(a)(1)(B) of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year 2019 (FY2019) (Public Law 115-232), commonly referred to as “889 Part B”.

This letter:

  1. Provides implementing instructions for contracting officers.
  2. Explains GSA’s waiver process - Waiver authority expired 8/13/2022.
  3. Establishes supplemental waiver procedures for GSA’s emergency acquisitions and real property lease acquisitions - Waiver authority expired 8/13/2022.
  4. Notifies all members of GSA’s acquisition workforce of two new, required training courses specific to 889 Part B.

2. Background.

In response to significant national security concerns, as identified in the FAR rule published on July 14, 2020, Congress mandated two prohibitions in Section 889 of the NDAA. The first prohibition, which went into effect on August 13, 2019, prohibited the Federal Government (the Government) from purchasing telecommunications and video surveillance equipment or services manufactured or provided by five named companies and their subsidiaries or affiliates (prohibited telecom) [1]. The five named companies are: Huawei Technologies Company; ZTE Corporation; Hytera Communications Corporation; Hangzhou Hikvision Digital Technology Company; and Dahua Technology Company.

The second, broader prohibition, which takes effect on August 13, 2020, prohibits the Government from entering into a contract (or extending or renewing a contract) with companies that use any equipment, system, or service that uses prohibited telecom as a substantial or essential component of any system, or as critical technology as part of any system, unless a waiver is obtained or an exception applies.

The FAR rule, published on July 14, 2020, and effective on August 13, 2020, amended the FAR to implement this second prohibition. GSA applied the representation and reporting requirements in the FAR rule to real property lease acquisitions and Commercial Solution Opening procurements (CSOs) via a separate class deviation, CD-2020-15, issued on August 6, 2020, and effective on August 13, 2020. Effective August 13, 2020, the FAR rule and CD-2020-15, taken together, require contracting officers and lease contracting officers (collectively, hereinafter COs) to:

  • Include the representation provision at FAR 52.204-24 (AUG 2020) in all solicitations, including solicitations for orders, and the reporting clause at FAR 52.204-25 (AUG 2020) in solicitations for contracts and resultant contracts, including for solicitations issued earlier than August 13, 2020, if award will not be made before August 13, 2020.
  • Modify existing indefinite delivery vehicles, including indefinite-delivery-indefinite- quantity contracts (collectively and individually, hereinafter IDVs/IDIQs) [2] to include the reporting clause at FAR 52.204-25 (AUG 2020) prior to placing any future orders.
  • Modify existing definite-delivery, otherwise known as stand-alone, non-IDV/IDIQ contracts, including real property lease acquisitions, before extending the period of performance, exercising an option, or renewing the contract.

The representation provision at FAR 52.204-24 (AUG 2020) requires two representations from offerors. The first is regarding whether they will provide prohibited telecom to the Government, and the second is regarding whether they use prohibited telecom, regardless of whether that use is in performance of work under a Federal contract. The reporting clause at FAR 52.204-25 (AUG 2020) requires contractors to report to the CO if they identify prohibited telecom used during contract performance. These disclosures by contractors will drive COs’ actions with respect to 889 Part B compliance.

GSA communications with industry indicate that there may be widespread use of prohibited telecom throughout GSA’s industry base. Therefore, this AL provides guidance to COs on how to handle likely scenarios throughout the acquisition lifecycle to best meet mission needs as well as to track mission impact. See Appendix A for additional resources and references, including frequently asked questions. See Appendix B for a matrix to determine representation provision and reporting clause insertion for new solicitations, new contracts, and existing contracts (including real property lease acquisitions).

3. Effective period.

This AL is effective August 13, 2020, and remains in effect until rescinded, or incorporated into the General Services Administration Acquisition Regulation (GSAR).

4. Applicability.

This AL applies to all GSA contracting activities, including real property lease acquisitions, identified in GSAR part 570, and CSOs, identified in GSAR part 571. GSA contracting activities performing assisted acquisitions shall follow this policy except where identified in section 5 “Requirements”.

5. Requirements.

  1. Acquisition planning.
    1. Because 889 Part B applies to all contracts, no matter what supply or service is being acquired, the prohibitions could have a significant impact on the U.S. Federal supply chain.
      1. 889 Part B has the potential to disrupt agency missions. Therefore, market research is particularly critical.
      2. The acquisition workforce (e.g. COs, Contracting Officer Representatives, and Program and Project Managers) should strive to identify potential suppliers that “do not” use prohibited telecom by making potential suppliers’ use of prohibited telecom a core part of market research for all acquisitions.
      3. Business lines should update existing market research guidance, tools, and templates to reflect best practices to identify eligible suppliers.
    2. If a compliant supplier cannot be identified, the program office and acquisition office should look for other ways to satisfy the requirement, including identifying other acquisition strategies, changing the requirement description, changing the requirement, insourcing, etc.
    3. If a compliant supplier cannot be identified, and there are no appropriate alternative procurement methods or ways to satisfy the requirement, the CO may need to be prepared to request a waiver. Review subsection (f) of this section (5) on waivers to understand the complexity involved.
  2. Creating and Updating Solicitations, Including Requests for Quotations (RFQs).
    1. COs shall include the solicitation-level representation provision at FAR 52.204-24 (AUG 2020) in all new solicitations, including solicitations for orders, issued on or after August 13, 2020.
    2. On or after August 13, 2020, prior to placing orders under IDVs/IDIQs (e.g., FSS, GWACs, and MACs), COs shall review the contract to ensure that the reporting clause at FAR 52.204-25 (AUG 2020) has been incorporated in the contract. If the reporting clause at FAR 52.204-25 (AUG 2020) has not been incorporated in the contract, COs shall also include the reporting clause in the RFQ solicitation and resultant order.
      1. For FSS contracts, review the contract’s current terms and conditions in Contracts Online.
      2. For Non-FSS contracts, review contract current terms and conditions at the applicable IDV/IDIQ program website.
    3. COs shall include the reporting clause at FAR 52.204-25 (AUG 2020) in all new solicitations for contracts and their resultant contracts, issued on or after August 13, 2020
    4. For solicitations issued before August 13, 2020, but not yet awarded, the CO may either issue an amendment to the solicitation to include the representation provision at FAR 52.204-24 (AUG 2020) or receive the representation from the apparent successful offeror. In either case, the CO must ensure that the reporting clause at FAR 52.204-25 (AUG 2020) is incorporated into the awarded contract.
    5. COs are not required to include the representation provision at FAR 52.204-24 (AUG 2020) or the reporting clause at FAR 52.205-25 (AUG 2020) in Blanket Purchase Agreements (BPAs), but may do so at their discretion. Orders placed against BPAs are required to include the representation provision and, if necessary the reporting clause, as described above in (b)(ii).
    6. Note: A new representation under the provision at FAR 52.204-26, regarding whether entities use prohibited telecom, will be added to the System for Award Management (SAM) via a subsequent FAR rule. [3]
  3. Requirements if the Apparent Successful Offeror Represents That it Will Provide, Uses, or Will Use Prohibited Telecom.
    1. The prohibition in 889 Part B is a factor for eligibility for award to an offeror, not an evaluation factor for the offeror’s proposal/quote. The following procedures apply when an otherwise apparent successful offeror represents that it will provide, uses, or will use prohibited telecom.
    2. First, clarify with the apparent successful offeror to make sure that it accurately completed the representation(s). If the offeror did not, advise the offeror to correct and resubmit its representation. If the offeror corrects its submission and no longer represents that it will provide, uses, or will use prohibited telecom, the CO may make award to the apparent successful offeror.
    3. If the apparent successful offeror confirms that it will provide, uses, or will use prohibited telecom, the CO will need to determine whether or not an existing Office of the Director of National Intelligence (ODNI) waiver or GSA agency-level waiver for the apparent successful offeror exists.
      1. GSA will list approved GSA agency-level waivers on the Acquisition Portal at http://insite.gsa.gov/scrm (Note: link accessible to GSA employees only).
      2. New contracts and orders may be awarded to companies with existing ODNI waivers, pursuant to the terms of the applicable waiver.
      3. To determine whether an existing waiver applies, the CO may consult with their acquisition team, technical experts, their management, and request assistance from the SCRM Review Board by contacting SCRM-Review-Board@gsa.gov.
    4. If the apparent successful offeror confirms that it will provide, uses, or will use prohibited telecom and an existing waiver does not apply, the CO shall submit a Supply Chain Event Report [4] to the Supply Chain Risk Management (SCRM) Review Board, including, at a minimum:
      1. A “critical date,” no less than three business days, for when a response from the SCRM Review Board is requested. The CO may proceed to the next step(s) below if the SCRM Review Board has not responded by the “critical date.”
      2. The information provided by the offeror under paragraph (e) of the representation provision at FAR 52.204-24 (AUG 2020).
      3. Be aware that the SCRM Review Board may ask for additional information.
    5. If the apparent successful offeror confirms that it will provide, uses, or will use prohibited telecom and there is no applicable waiver, the CO will need to determine whether or not an exception applies, if the prohibited telecom is not a substantial or essential component of a system, or if the prohibited telecom is not critical technology as part of any system.
      1. The SCRM Review Board will provide to the CO, via response to the Supply Chain Event Report, information as to whether it thinks that award to the apparent successful offeror will result in a violation of either prohibition. If the SCRM Review Board has not responded by the “critical date,” the CO may make a determination without the SCRM Review Board’s input.
      2. Resources for assisting the CO in making this determination, based on previous guidance provided by GSA’s SCRM Review Board, will be available on the Acquisition Portal at http://insite.gsa.gov/scrm (Note: link accessible to GSA employees only).
      3. If, after using such resources, the CO cannot make this determination on their own, the CO should consult with their acquisition team, technical experts, their management, and request additional assistance from the SCRM Review Board by contacting SCRM-Review-Board@gsa.gov.
      4. If the CO determines that awarding to the apparent successful offeror will not result in a violation of either prohibition, the CO should document the file accordingly and may make an award to the apparent successful offeror.
    6. If the CO determines that awarding to the apparent successful offeror will result in a violation, in most cases, the CO should determine that the offeror is not eligible for award and should move to the next offeror in line for award. COs may use language in Appendix C when documenting their determination in the contract file. Repeat these steps until an eligible offeror is found.
    7. If, after repeating the above steps, the CO does not identify an eligible offeror, the acquisition team should look to see whether it can identify other acquisition strategies, make partial award, cancel the solicitation, change the requirement description, change the requirement, insource, etc., in accordance with procurement rules to find a source that does not use prohibited telecom.
    8. As a last resort, the CO may consider pursuing a waiver for an offeror (see procedures in subsection (f) of this section (5)).
  4. Administering Existing Contracts and Extending Periods of Performance.
    1. For existing IDVs/IDIQs (including FSS, GWACs, and MACs), on or as soon after August 13, 2020, as possible, the CO shall modify the contract to include the reporting clause at FAR 52.204-25 (AUG 2020).
      1. For Government-wide IDV/IDIQ contracts, the IDV/IDIQ Program Manager shall clearly identify to ordering activities (e.g., by updating Contracts Online for FSS, or updating Program Websites) which contracts have been modified to include the reporting clause at FAR 52.204-25 (AUG 2020).
      2. For IDVs/IDIQs, BPAs, and other requisition programs, where orders do not require a solicitation or RFQ, the reporting clause at FAR 52.204-25 (AUG 2020) must be added to the underlying contract before the period of performance of the underlying contract is extended. Orders and BPA “calls” that do not require a solicitation (including an RFQ or a quotation) are not required to include the reporting clause at FAR 52.204-25 (AUG 2020) [5].
    2. For all existing non-IDV/IDIQ contracts, as options to extend periods of performance are exercised, or periods of performance are otherwise extended [6], all non-IDV/IDIQ contracts, shall be modified to include the reporting clause at FAR 52.204-25 (AUG 2020). The modification should be made with a sufficient amount of time to both provide notice for exercising the option (or otherwise extending the period of performance) and to provide the contractor with adequate time to comply with the clause. The above process also applies when exercising options to extend periods of performance of orders that were originally awarded before August 13, 2020.
    3. If the contractor is unwilling to add the reporting clause at FAR 52.204-25 (AUG 2020), the CO may not exercise the option to extend the contract or order or otherwise extend the period of performance of the contract or order. The CO should identify alternatives (e.g., immediate recompete) and execute the best alternative that meets the Government’s current needs. See the frequently asked questions available on the Acquisition Portal at http://insite.gsa.gov/scrm (Note: link accessible to GSA employees only) for additional information regarding when an existing contractor will not add the reporting clause at FAR 52.204-25.
    4. If the contractor reports use of prohibited telecom, see subsection (e) of this section 5.
  5. Requirements if a Current Contractor Reports Use of Prohibited Telecom.
    If the contractor reports that it identified prohibited telecom used during contract performance, pursuant to the reporting clause at FAR 52.204-25 (AUG 2020), the CO shall take the following actions:
    1. First, clarify with the contractor to make sure that it accurately reported use of prohibited telecom. If the contractor did not, advise the contractor to withdraw its report. If the contractor withdraws its report, document the file accordingly.
    2. If the contractor confirms that it identified prohibited telecom used during contract performance, the CO will need to determine whether or not an existing ODNI waiver or GSA agency-level waiver for the contractor exists.
      1. GSA will list approved GSA agency-level waivers on the Acquisition Portal at http://insite.gsa.gov/scrm (Note: link accessible to GSA employees only).
      2. The period of performance of existing contracts and orders with contractors with existing ODNI waivers may be extended, pursuant to the terms of the applicable waiver.
      3. To determine whether an existing waiver applies, the CO may consult with their acquisition team, technical experts, their management, and request assistance from the SCRM Review Board by contacting SCRM-Review-Board@gsa.gov.
    3. If the contractor confirms that it identified prohibited telecom used during contract performance and an existing waiver does not apply, the CO shall submit a Supply Chain Event Report [7] to the SCRM Review Board, including, at a minimum:
      1. A “critical date”, no less than three business days, for when a response from the SCRM Review Board is requested. The CO may proceed to the next step(s) below if the SCRM Review Board has not responded by the “critical date”.
      2. The information provided by the offeror under paragraph (d) of the reporting clause at FAR 52.204-25 (AUG 2020).
      3. Be aware that the SCRM Review Board may ask for additional information.
    4. If the contractor confirms that it identified prohibited telecom used during contract performance and there is no applicable waiver, the CO will need to determine whether or not an exception applies, if the prohibited telecom is not a substantial or essential component of a system, or if the prohibited telecom is not critical technology as part of any system.
      1. The SCRM Review Board will provide to the CO, via response to the Supply Chain Event Report, information as to whether it thinks that continued performance or extension of the contract (or order) will result in a violation of the prohibition. If the SCRM Review Board has not responded by the “critical date”, the CO may make a determination without the SCRM Review Board’s input.
      2. (2) Resources for assisting the CO in making this determination, based on previous guidance provided by GSA’s SCRM Review Board, will be available on the Acquisition Portal at http://insite.gsa.gov/scrm (Note: link accessible to GSA employees only).
      3. If, after using such resources, the CO cannot make this determination on their own, the CO should consult with their acquisition team, technical experts, their management, and request additional assistance from the SCRM Review Board by contacting SCRM-Review-Board@gsa.gov.
      4. (4) If the CO determines that continued performance or extension of the contract (or order) will not result in a violation of the prohibition, the CO should document the file accordingly and may continue performance of and/or extend the contract (or order).
    5. Normally, if the CO determines that continuing performance of or extending the contract (or order) will result in a violation, the only action required of the CO is to not extend the contract. If stronger action is contemplated (such as contract termination) consult with management and the SCRM Review Board. COs may use language in Appendix C when documenting the contract file with a determination to terminate or cancel the contract (or order) or to not extend a period of performance.
    6. (vi) As a last resort, the CO may consider pursuing a waiver for a contractor (see procedures in subsection (f) of this section (5)).
  6. Requesting a GSA agency waiver - Waiver authority expired 8/13/2022. [8]
    1. In very limited circumstances, the FAR rule and Section 889 permit GSA to grant a one-time, agency-level waiver for entities (i.e., offerors or contractors) that contract, or wish to contract, with GSA. The FAR rule established agency prerequisites to govern basic eligibility to issue a waiver. GSA has met those prerequisites and is, therefore, eligible to issue waivers [9]. The waiver process is generally the same for a new award or an existing contract.
    2. Waivers should be sought only as a last resort, and therefore, there are only two circumstances in which a GSA CO can pursue a waiver. In either circumstance, the CO must work through the SCRM Review Board.
      1. For a new procurement, when there is no other means to make an award in time to avoid mission failure.
      2. For on-going contracts, where there is no other means to replace the contractor in time to avoid mission failure.
    3. If the CO plans to pursue a waiver, follow the below steps in order. Note that subsections (1)-(8) apply to all waiver requests and that beginning with subsection (9), there are special procedures for emergency acquisition (see subsection (11) below) and for real property lease acquisitions (see subsection (12) below).
      1. Review, in accordance with FAR 4.2104(a)(2)(iii), the guidance provided by ODNI that identifies the list of product service codes (PSCs) within ODNI Strategic Supply Chain Security Guidance to determine whether any PSC(s) for the acquisition are “high risk” on the OMB MAX 889 Guidance Site [10].
      2. Consult with the offeror or contractor to determine whether the offeror or contractor would like to proceed with the waiver process. If the offeror or contractor decides not to proceed with the waiver process, then the CO should follow the procedures in subsections (c)(vii) (for new awards) or (e)(v) (for existing contracts or orders) above.
      3. If the offeror or contractor decides to proceed with the waiver process, request the offeror or contractor to provide all of the following (if they have not previously):
        1. A full and complete laydown or description of the presence of all covered telecommunications or video surveillance equipment or services in the relevant supply chain in accordance with FAR 4.2104(a)(1). In other words, ask for their inventory of use of prohibited telecom.
        2. A phase-out plan to eliminate such covered telecommunications or video surveillance equipment or services from the relevant systems in accordance with 4.2104(a)(1). In other words, ask how they plan to stop using the prohibited telecom.
        3. If any PSC for procurement is not low risk, the CO shall also request the following information from the offeror or contractor regarding the offeror’s or contractor’s operations, regardless of the products or services being delivered to the Government—
          1. Information regarding the extent of the offeror’s or contractor’s involvement in the development of sensitive or critical technologies and/or access to sensitive data [11]; and
          2. Information regarding the offeror’s or contractor’s involvement in critical infrastructure areas or related functions [12]
      4. Evaluate the information provided by the offeror or contractor to determine in accordance with FAR 4.2104(a)(1) if—
        1. There is a compelling justification to grant the waiver. Examples of a compelling justification may include any of the following:
          1. There is no other eligible awardee and the high possibility of mission failure dictates that there is insufficient time to cancel the current procurement and start over.
          2. There is insufficient time to initiate a new procurement and there is a high possibility of mission failure occurring before the current period of performance ends.
          3. Not issuing a waiver may cause grave harm to GSA or its customer agencies; the CO must explain the grave harm.
          4. For real property lease acquisitions, the signed occupancy agreement for leases below prospectus and the signed congressional committee resolution for agreements above prospectus may serve as the compelling justification.
        2. The offeror’s or contractor’s supply chain laydown and phase-out plan are sufficient for proceeding with the waiver request. Examples of sufficient phase-out plans include
          1. A plan that protects the Government from, or mitigates the the effects of, security threats, to the maximum extent practicable for the period of the waiver.
          2. A plan that completely eliminates the “use” of prohibited telecom.
      5. After comparing the PSC(s) in the acquisition to ODNI’s Supply Chain Security Guidance [13] described in subsection (1) above—
        1. If any PSC for the acquisition is identified as a high risk product or service, then the CO shall go directly to subsection (6) below.
        2. If none of the PSC(s) for the acquisition are identified as a high risk product or service, the CO may make an assumption that there is no material risk to U.S. national security, and the CO shall skip to subsection (8) below.
      6. Review the sensitive technologies or sensitive data lists in accordance with FAR 4.2104(a)(2)(iii) on the OMB MAX 889 Guidance Site.
        1. If the waiver is for an offeror or contractor that is involved in the development of sensitive technology or sensitive data, GSA does not anticipate that the waiver will be granted, and the CO should consider terminating the waiver process.
        2. If the waiver is not for an offeror or contractor that is involved in the development of sensitive technology or sensitive data, then the CO shall follow the procedures in subsection (7) below.
      7. Review ODNI’s Critical Infrastructure and Related Functions Best Practices List in accordance with FAR 4.2104(a)(2)(iii) on the OMB MAX 889 Guidance Site.
        1. If the waiver is for an offeror or contractor that is involved in critical infrastructure areas or related functions, ODNI has advised the CO to use caution in continuing the waiver process. If the CO choses to continue the waiver process, follow the procedures in subsection (8) below.
        2. If the waiver is not for an offeror or contractor involved in critical infrastructure areas nor a related function, then the CO may make an assumption of approval and follow the procedures in subsection (8) below.
      8. GSA has developed a standard waiver request template and a template congressional notification letter available on the Acquisition Portal at http://insite.gsa.gov/scrm (Note: link accessible to GSA employees only). The Acquisition Portal at http://insite.gsa.gov/scrm (Note: link accessible to GSA employees only) also includes the list of necessary approvals. The CO shall fill out the appropriate waiver template, including drafting the congressional notification letter and obtaining the necessary approvals.
      9. For emergency acquisitions, skip to subsection (11) below. For real property lease acquisitions and CSOs, skip to subsection (12) below. For all other acquisitions, the CO shall submit the waiver to ODNI and the FASC via the email addresses available on the Acquisition Portal at http://insite.gsa.gov/scrm (Note: link accessible to GSA employees only), in accordance with FAR 4.2104(a)(2)(iv).
        1. If neither ODNI nor the FASC raise additional concerns within 15 days of the CO’s submission to them of the waiver, then the waiver is deemed approved by ODNI and the FASC. If either ODNI or the FASC raise additional concerns, these concerns will need to be addressed before the waiver process can continue.
        2. For pre-award waiver requests, once the waiver has been approved by ODNI and the FASC, award may be made.
        3. For post-award waiver requests, once the waiver has been approved by ODNI and the FASC, notify the contractor of the terms of the granted waiver and document the contract file accordingly to allow for continued performance or extension of the contract, as applicable.
      10. Once the waiver is approved, the CO shall send the approved waiver and draft congressional notification letter to GSACongressionalAffairs@gsa.gov, who will notify the appropriate congressional committees by a final congressional notification letter no later than 30 days after approval in accordance with 4.2104(a)(4)(ii). For real property lease acquisitions, notification to Congress shall, if applicable, include mention that a tenant relocation will be required.
      11. For emergency acquisitions under the Stafford Act, waivers may be issued by the Administrator (or designee) on a class basis and may be communicated by the Senior Procurement Executive.
        1. Once a class waiver has been granted, the CO may proceed with award and:
          1. If the CO determines that it is not practicable to obtain the full and complete laydown prior to making award, the CO must attempt to obtain this laydown within 30 days after award.
          2. If the CO determines that it is not practicable to obtain the phase-out plan prior to making award, the CO must attempt to obtain this plan within 30 days after award.
        2. For emergency acquisitions under the Stafford Act, the declaration of major disaster shall constitute the compelling justification.
        3. The CO shall notify ODNI and the FASC of the waiver issued under emergency conditions in accordance with subsection (9) above concurrently with the notification to Congress under subsection (10) above.
      12. For real property lease acquisitions, the CO shall notify ODNI and the FASC [14] of granted waivers concurrently with the notification to Congress under subsection (10).
  7. Acquisitions Funded by Another Agency.
    1. For FAS’s assisted acquisitions, where the funding agency is not GSA:
      1. Follow the policies of the funding agency.
      2. Update Inter-Agency Agreements (IAAs) to address Section 889 of the NDAA and other SCRM issues.
      3. If the funding agency does not have a waiver approval process, or does not satisfy the requirements to process waivers, then no agency-level waivers may be initiated. Any waivers issued must align with, and be processed within, the funding agency’s process. Waiver approval, processing, and FASC/ODNI/Congress notification is the responsibility of the funding agency unless otherwise identified in the IAA.
      4. The Department of Defense issued undated guidance on 889 Part B, which, for example, specifies that all Basic Ordering Agreements and BPAs must be updated to include the reporting clause before any call/order may be placed. DoD Guidance requires completion of the representations required by the provision at 52.204-24 (AUG 2020) by existing contractors before exercising options. Further guidance from the Department of Defense is anticipated.
    2. For PBS’s Reimbursable Work Authorizations:
      1. For work funded by a single customer agency, follow the funding agency’s implementation guidance. In the absence of funding agency guidance for the waiver process, follow the GSA guidance regarding whether use is permissible; no agency-level waivers may be initiated.
      2. For work funded by multiple customer agencies, or jointly funded by a customer agency and GSA, follow the GSA guidance.

6. Workforce training.

The Federal Acquisition Institute in partnership with the Defense Acquisition University has developed Government-wide training FAC 889, Section 889: Prohibition on Telecommunication and Video Equipment. GSA will also create a supplemental training to address GSA-specific guidance outlined in this AL [15].

All GSA employees with a FAC-C, FAC-COR, FAC-P/PM or LCP certification are required to take the FAI course and the GSA course no later than November 25, 2020.

7. Points of contact.

  • Any questions from the GSA acquisition workforce regarding the policy contained in this AL may be directed to GSARPolicy@gsa.gov.
  • Any questions from the public regarding the FAR rule shall be directed to the Federal Register via regulations.gov with the following instructions:
    • Submit comments in response to FAR Case 2019–009 via the Federal eRulemaking portal at Regulations.gov by searching for ‘‘FAR Case 2019– 009’’. Select the link ‘‘Comment Now’’ that corresponds with FAR Case 2019–009. Follow the instructions provided at the ‘‘Comment Now’’ screen. Please include your name, company name (if any), and ‘‘FAR Case 2019–009’’ on your attached document.
  • Any media inquiries shall be directed to press@gsa.gov.

8. Attachments.

  • Appendix A – Resources and References.
  • Appendix B – Clause and Provision Checklist.
  • Appendix C – Sample Language Documenting Contract File for Ineligible Awardee/Extension Due to 889 Part B.

Appendix A – Resources and References.

The following documents are some of the statutes, regulations, and related guidance that govern information and information system security.

  • JOHN S. MCCAIN NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2019, Public Law 115-232.
  • FAR Case 2019-009 Prohibition on Contracting With Entities Using Certain Telecommunications and Video Surveillance Services or Equipment.
  • SCRM Insite Page.
  • ODNI’s Critical Infrastructure and Related Functions Best Practices List, and ODNI Waiver Flow Chart, available on OMB MAX. CO must first request access to the 889 Guidance page on OMB MAX.
  • DoD 889 Implementation Memo [PDF].
  • Class Deviation CD-2020-15.
  • Class Deviation CD-2019-11 Addendum 1.

Appendix B – Clause and Provision Checklist.

The following provision must be included in new and existing solicitations.

  • FAR Provision at 52.204-24 (AUG 2020), Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment.

The following clause must be included in all contracts awarded by GSA on or after August 13, 2020.

  • FAR Clause at 52.204-25 (AUG 2020), Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment.

The following clause must be included in all existing contracts and orders, as of August 13, 2020, as options to extend periods of performance are exercised, or periods of performance are otherwise extended.

  • FAR Clause at 52.204-25 (AUG 2020), Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment.

Appendix C – Sample Language Documenting Contract File for Ineligible Awardee/Extension Due to 889 Part B.

Instructions: To use this language, please select your situation from the bold language in bracketed options below, and delete the inapplicable choice as well as the brackets and italicized “or”. You may change the bold font to normal at your discretion. Note this language may be used for both solicitations/requests for lease proposals and existing contracts.

Pursuant to Public Law No: 115-232, as implemented through FAR 4.2102, the Government is 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 or waiver applies. [offeror name or contractor name] has [reported or represented] such use and the contracting officer has determined that the use is a substantial or essential component of any system, or as critical technology as part of any system, and that no exception or existing waiver applies. [offeror name or contractor name] is ineligible for [award or contract extension] and the contracting officer is hereby [eliminating the offeror from competition or not extending this contract or terminating (or cancelling) this contract].

Endnotes

[1] Section 889 of the NDAA uses the term “covered telecommunications equipment or services.” For ease of understanding, this AL uses the term “prohibited telecom” to mean “covered telecommunication equipment or services.” Section 889 of the NDAA defines “covered telecommunications equipment or services” as: “(A) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities). (B) 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). (C) Telecommunications or video surveillance services provided by such entities or using such equipment. (D) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the 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.”

[2] GSA’s IDVs/IDIQs include Federal Supply Schedules (FSS), Government-wide Acquisition Contracts (GWACs), and Multiple-Award Contracts (MACs) contracts.

[3] Once the provision at FAR 52.204-26 has been updated, the frequently asked questions available on the Acquisition Portal at http://insite.gsa.gov/scrm (Note: link accessible to GSA employees only) will be updated accordingly.

[4] The Supply Chain Event Report is available on the Acquisition Portal at http://insite.gsa.gov/scrm (Note: link accessible to GSA employees only).

[5] Examples include 4PL Retail Stores and orders against Global Supply Single-Award BPAs Agreements for the requisition of supplies, Autochoice programs, and the CityPairs Contract.

[6] Examples include 4PL Retail Stores and orders against Global Supply Single-Award BPAs Agreements for the requisition of supplies, Autochoice programs, and the CityPairs Contract.

[7] The Supply Chain Event Report is available on the Acquisition Portal at http://insite.gsa.gov/scrm (Note: link accessible to GSA employees only).

[8] Information on ODNI waivers will be posted to the Acquisition Portal at http://insite.gsa.gov/scrm (Note: link accessible to GSA employees only), when available.

[9] For informational purposes, the prerequisites are: (1) GSA must designate a senior agency official for supply chain risk management; and (2) GSA must establish participation in an information-sharing environment when and as required by the Federal Acquisition Security Counsel (FASC).

[10] Prior to downloading this and any other document linked in this policy from OMB MAX, the CO must first request access to the 889 Guidance page on OMB MAX. To do this, visit this link: https://community.max.gov/x/o9VHg, then click on the registration link on the left.

[11] For information on sensitive technologies or sensitive data lists see, the OMB MAX 889 Guidance Site.

[12] For information on sensitive technologies or sensitive data lists see, the OMB MAX 889 Guidance Site.

[13] Using this ODNI guidance satisfies the FAR rule’s requirement to consult with ODNI.

[14] The CO shall submit the waiver to ODNI and the FASC via the email addresses available on the Acquisition Portal at http://insite.gsa.gov/scrm (Note: link accessible to GSA employees only).

[15] Additional details on the GSA-specific training will be available on the Acquisition Portal at http://insite.gsa.gov/scrm (Note: link accessible to GSA employees only).

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Last updated: Apr 4, 2025
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Glossary

  • An SBA program that helps provide a level playing field for small businesses owned by socially and economically disadvantaged people or entities that meet the following eligibility requirements:

    • Be a small business
    • Not already have participated in the 8(a) program
    • Be at least 51 percent owned and controlled by U.S. citizens who are economically and socially disadvantaged
    • Be owned by someone whose personal net worth is $750,000 or less.
    • Be owned by someone whose average adjusted gross income for three years is $350,000 or less
    • Be owned by someone with $6 million or less in assets
    • Have the owner manage day-to-day operations and also make long-term decisions
    • Have all its principals demonstrate good character
    • Show potential for success and be able to perform successfully on contracts

    See Title 13 Part 124 of the Code of Federal Regulations for more information.

  • A multiple-award IDIQ governmentwide acquisition contract offering complete and flexible IT solutions worldwide. A best-in-class GWAC and preferred governmentwide solution, Alliant 2 offers:

    • Artificial intelligence
    • Distributed ledger technology
    • Robotic process automation
    • Other types of emerging technologies

    It provides best-value IT solutions to federal agencies, while strengthening chances in federal contracting for small businesses through subcontracting.

  • An agreement established by a government buyer with a Multiple Award Schedule contractor to fill repetitive needs for supplies or services.

  • Types of funds to use on specific expenses.

    • BA51 is for new construction
    • BA53 is for rental of space
    • BA54 is for repairs and alterations below the prospectus level
    • BA55 is for repairs and alterations above the prospectus level
    • BA61 is for operations, except salaries, cleaning, utilities, etc.
  • The work done to make a structure or system ready for use or to bring a construction or development project to a completed state.

  • Negotiated firm-fixed pricing on airline seats for official government travel. The locked-in ticket prices for the fiscal year save federal agencies time and money. Federal employees enjoy flexibility to change their plans without incurring penalties or additional costs. All negotiated rates have:

    • Flexibility to book one-way, multi-leg, and round-trip tickets
    • Lenient refund policies
    • Ability to adjust or cancel flights at no additional cost
    • Unrestricted time limits on ticketing
    • No advance purchase requirements
    • No blackout periods

    Use the CPP search tool to find current fares.

  • From 5 USC 5701(6), "continental United States" means the several states and the District of Columbia, but does not include Alaska or Hawaii.

  • A space where individuals work independently or co-work collaboratively in a shared office. The work environment is similar to a typical office, usually inclusive of office equipment and amenities. Typical features of co-working facilities include work spaces, wireless internet, communal printer/copier/fax, shared kitchens, restrooms and open seating areas. May also be referred to as a “shared office.”

  • A system that is bought from a commercial vendor to solve a particular problem, as opposed to one that a vendor custom builds.

  • An employee who negotiates and awards contracts with vendors and who has the sole authority to change, alter or modify a contract.

  • An employee whose duties are to develop proper requirements and ensure contractors meet the commitments during contract administration, including the timeliness and delivery of quality goods and services as required by the contract.

  • A request of GSA where a federal agency retains and manages all aspects of the procurement process and is able to work with the selected vendor after award.

  • An SBA program that gives preferential consideration for certain government contracts to businesses that meet the following eligibility requirements:

    • Meet all the requirements of the WOSB Federal Contract program
    • Be owned and controlled by one or more women, each with a personal net worth less than $850,000
    • Be owned and controlled by one or more women, each with $450,000 or less in adjusted gross income averaged over the previous three years
    • Be owned and controlled by one or more women, each $6.5 million or less in personal assets

    See Title 13 Part 127 Subpart B of the Code of Federal Regulations for more information.

  • The primary regulation for federal agencies to use when buying supplies and services with funds from Congress.

    Use acquisition.gov to browse FAR parts or subparts or download the full FAR in various formats.

  • The travel and relocation policy for all federal civilian employees and others authorized to travel at government expense.

  • A program that promotes the adoption of secure cloud services across the federal government by providing a standardized approach to security and risk assessment.

  • A GSA business line that provides safe, reliable, low-cost vehicle solutions for federal agency customers and eligible entities. Offerings include:

    • Vehicle purchasing, leasing and short-term rentals
    • Vehicle disposal
    • Maintenance control and accident management
    • Loss prevention and fuel services
    • A fleet management system with detailed, accurate data
  • A charge card for U.S. government personnel to use when paying for fuel and maintenance of GSA Fleet vehicles. Find out where the Fleet card is accepted, how to use it and more.

  • A Department of Homeland Security program that allows members to use expedited lanes at U.S. airports and when crossing international borders by air, land and sea.

  • A charge card for certain U.S. Government employees to use when buying mission-related supplies or services using simplified acquisition procedures, when applicable, and when the total cost does not exceed micro-purchase thresholds.

  • A charge card for U.S. government personnel to use when paying for reimbursable expenses while on official travel. Visit smartpay.gsa.gov for more.

  • A vehicle used to perform an agency’s mission(s), as authorized by the agency.

  • Pre-competed, multiple-award, indefinite delivery, indefinite quantity contracts that agencies can use to buy total IT solutions more efficiently and economically.

  • A ceremony marking the official start of a new construction project, typically involving driving shovels into ground at the site.

  • An online shopping and ordering system at gsaadvantage.gov that provides access for federal government employees and in some cases, state and local entities, to purchase from thousands of contractors offering millions of supplies and services.

  • An online auction site at gsaauctions.gov that allows the general public to bid on and buy excess federal personal property assets such as:

    • Office equipment
    • Furniture
    • Scientific equipment
    • Heavy machinery
    • Airplanes
    • Vessels
    • Vehicles
  • Real property for which GSA is responsible. It can be either federally owned or leased from a public or private property owner.

  • An SBA program that gives preferential consideration for certain government contracts to business that meet the following eligibility requirements:

    • Be a small business
    • Be at least 51 percent owned and controlled by U.S. citizens, a Community Development Corporation, an agricultural cooperative, a Native Hawaiian organization, or an Indian tribe
    • Have its principal office located in a HUBZone
    • Have at least 35 percent of its employees live in a HUBZone

    See Title 13 Part 126 Subpart B of the Code of Federal Regulations for more information.

  • A type of contract when the quantity of supplies or services, above a specified minimum, the government will require is not known. IDIQs help streamline the contract process and speed service delivery.

  • A fee paid by businesses who are awarded contracts under Multiple Award Schedule to cover GSA’s cost of operating the program. The fee is a fixed percentage of reported sales under MAS contracts that contractors pay within 30 calendar days following the completion of each quarter.

  • A law that provides $3.375 billion for us to:

    • Invest in federal buildings with materials and technologies, making them more efficient, saving taxpayer dollars and creating opportunities for small businesses.
    • Help boost the competitiveness of American manufacturers developing materials.

    This includes $2.15 billion for low embodied carbon materials in construction projects, $975 million to support emerging and sustainable technologies, and $250 million for measures to convert more buildings into High Performance Buildings.

  • An investment in our nation’s infrastructure and competitiveness. The law provides funding for LPOE modernization projects that will create new good-paying jobs, bolster safety and security, and make our economy more resilient to supply chain challenges.

  • A written agreement entered into between two federal agencies, or major organizational units within an agency, which specifies the goods to be furnished or tasks to be accomplished by one agency (the servicing agency) in support of the other (the requesting agency).

  • A facility, also known as a border station, that provides controlled entry into or departure from the United States for persons or materials. It houses the U.S. Customs and Border Protection and other federal inspection agencies responsible for the enforcement of federal laws related to entering into or departing from the U.S.

  • An employee who is responsible for preparing, negotiating, awarding and monitoring compliance of lease agreements.

  • Criteria used to select the technically acceptable proposal with the lowest evaluated price. Solicitations must specify that award will be made on the basis of the lowest evaluated price of proposals meeting or exceeding the acceptability standards for non-cost factors.

  • The rate of reimbursement for driving a privately owned vehicle when your agency authorizes it. Current rates are at gsa.gov/mileage.

  • Long-term governmentwide contracts with commercial firms providing federal, state, and local government buyers access to more than 11 million commercial products and services at volume discount pricing. Also called Schedules or Federal Supply Schedules.

  • The standard federal agencies use to classify business establishments for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. business economy.

  • A family of six separate governmentwide multiple award, IDIQ contracts for management and advisory, facilities, technical and engineering, logistics, intelligence services, research and development, environmental, and enterprise solutions.

  • A formal, signed agreement between GSA’s Public Buildings Service and a federal agency for a specific space assignment.

  • Services performed under a contract with a federal agency that include:

    • Cemetery maintenance
    • Electrical systems and energy management control systems
    • Elevator inspection and maintenance
    • Energy management and audit services
    • Fire alarm and fire suppression system maintenance
    • Janitorial
    • Landscaping and snow removal
    • Marine vessel maintenance and repair services
    • Painting
    • Pest control
    • Plumbing or pipe fitting
    • Refrigeration or heating, cooling, and air conditioning
    • Smart buildings
  • The per day rates for the lower 48 continental United States, which federal employees are reimbursed for expenses incurred while on official travel. Per diem includes three allowances:

    • A rate for lodging
    • A rate for meals
    • A rate for incidental expenses
  • An identification card that allows credentialed government personal to access facilities, computers, or information systems. May also be referred to as HSPD-12 card, LincPass, Smart Card, or CAC.

  • Furniture and equipment such as appliances, wall hangings, technological devices, and the relocation expenses for such property.

  • Information that can be used to distinguish or trace an individual’s identity, either alone or when combined with other information that is linked or linkable to a specific individual. Get our agency's privacy policies and practices as they apply to our employees, contractors, and clients.

  • You should only drive a privately owned vehicle for official travel after your agency evaluates the use of:

    • A common carrier
    • A government-furnished vehicle
    • A rental car

    When your agency has determined a POV to be the most advantageous method of transportation, you are authorized reimbursement for mileage and some additional allowances (parking, bridge, road and tunnel fees, etc.).

  • Approvals from GSA’s congressional authorizing committees, the U.S. Senate Committee on Environment and Public Works and the U.S. House Committee on Transportation and Infrastructure, for proposed capital and leasing projects that require funding over an annually established threshold.

  • Region 1 (New England): Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont

    Region 2 (Northeast and Caribbean): Northern New Jersey, New York, Puerto Rico, U.S. Virgin Islands

    Region 3 (Mid-Atlantic): Delaware, parts of Maryland, Southern New Jersey, Pennsylvania, parts of Virginia, West Virginia

    Region 4 (Southeast Sunbelt): Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee

    Region 5 (Great Lakes): Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin

    Region 6 (Heartland): Iowa, Kansas, Missouri, Nebraska

    Region 7 (Greater Southwest): Arkansas, Louisiana, New Mexico, Oklahoma, Texas

    Region 8 (Rocky Mountain): Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming

    Region 9 (Pacific Rim): Arizona, California, Hawaii, Nevada

    Region 10 (Northwest Arctic): Alaska, Idaho, Oregon, Washington

    Region 11 (National Capital): Washington, D.C., area including parts of Maryland and Virginia

  • Formal agreements between GSA and a federal agency customer where GSA agrees to provide goods, services, or both, and the federal agency agrees to reimburse GSA’s direct and indirect costs. The customer portal for RWA information is called eRETA at extportal.pbs.gsa.gov.

  • A document used in negotiated procurements to communicate government requirements to prospective contractors (firms holding Multiple Award Schedule contracts) and to solicit proposals (offers) from them.

  • A document used to communicate government requirements, but which do not solicit binding offers. Quotations submitted in response are not offers. The Multiple Award Schedule order is the offer, and then the contractor can do something to show acceptance, like ordering supplies or contacting subcontractors.

  • An SBA program that gives preferential consideration for certain government contracts to businesses that meet the following eligibility requirements:

    • Be a small business
    • Be at least 51% owned and controlled by one or more service-disabled veterans
    • Have one or more service-disabled veterans manage day-to-day operations and also make long-term decisions
    • Eligible veterans must have a service-connected disability
    • Permanently and totally disabled veterans who are unable to manage the daily business operations of their business may still qualify if their spouse or appointed, permanent caregiver is assisting in that management

    See Title 13 Part 128 Subpart B of the Code of Federal Regulations for more information.

  • An SBA designation for businesses that meet size standards set for each NAICS code. Most manufacturing companies with 500 employees or fewer, and most non-manufacturing businesses with average annual receipts under $7.5 million, will qualify as a small business.

    See Title 13 Part 121.201 of the Code of Federal Regulations for more information.

  • To improve and stimulate small business utilization, we award contracts to businesses that are owned and controlled by socially and economically disadvantaged individuals. We have contracting assistance for:

    • 8(a) Business Development contractors
    • Historically underutilized business zone
    • Service-disabled, veteran-owned small businesses
    • Small businesses
    • Small disadvantaged businesses
    • Veteran-owned small businesses
    • Women-owned small businesses
  • A Small Business Administration program that gives preferential consideration for certain government contracts to business that meet the following eligibility requirements:

    • Be a small business
    • The firm must be 51% or more owned and controlled by one or more disadvantaged persons
    • The disadvantaged person or persons must be socially disadvantaged and economically disadvantaged

    See Title 13 Section 124.1001 of the Code of Federal Regulations for more information.

  • The basis for the lease negotiation process, which becomes part of the lease. SFOs include the information necessary to enable prospective offerors to prepare proposals. See SFO minimum requirements.

  • Specific supply and service subcategories within our Multiple Award Schedule. For the Information Technology Category, a SIN might be new equipment or cloud services.

  • An online system at sam.gov, which the U.S. Government uses to consolidate acquisition and award systems for use by contractors wishing to do business with the federal government. Formerly known as FBO.gov, all contracting opportunities valued over $25,000 are posted at sam.gov.

  • When you use a government purchase card, such as the "GSA SmartPay" travel card for business travel, your lodging and rental car costs may be exempt from state sales tax. Individually billed account travel cards are not tax exempt in all states. Search for exemption status, forms and important information.

  • The finishes and fixtures federal agency tenants select that take a space from a shell condition to a finished, usable condition and compliant with all applicable building codes and standards.

  • A statute that applies to all Multiple Award Schedule contracts, unless otherwise stated in the solicitation or contract, which requires contractors to sell to the U.S. Government only products that are manufactured or “substantially transformed” in the U.S. or a TAA-designated country.

  • Vendors report transactional data — information generated when the government purchases goods or services from a vendor — to help us make federal government buying more effective.

    See our TDR page for which SINs are eligible and which line-item data to submit.

  • A unique number required to do business with the federal government.

  • An indicator of how efficiently a federal agency is currently using space, it is traditionally calculated by dividing the usable square feet of the space, by the number of personnel who occupy the space.

  • A Small Business Administration program that gives preferential consideration for certain government contracts to businesses that meet the following eligibility requirements:

    • Be a small business, as defined by the size standard corresponding to any NAICS code listed in the business’s SAM profile
    • Have no less than 51% of the business owned and controlled by one or more veterans
    • For those veterans who are permanently and totally disabled and unable to manage the daily business operations of their business, their business may still qualify if their spouse or appointed, permanent caregiver is assisting in that management

    Get a full list of eligibility requirements.

  • A governmentwide acquisition contract exclusively for service-disabled veteran-owned small businesses to sell IT services such as:

    • Data management
    • Information and communications technology
    • IT operations and maintenance
    • IT security
    • Software development
    • Systems design
    • New and emerging technologies
  • The amount of solid waste, such as trash or garbage, construction and demolition waste, and hazardous waste, that is reused, recycled or composted instead of being put in a landfill or burned.

  • A GSA program designed to promote recycling and reuse of solid waste.

  • A Small Business Administration program that gives preferential consideration for certain government contracts to businesses that meet the following eligibility requirements:

    • Be a small business
    • Be at least 51% owned and controlled by women who are U.S. citizens
    • Have women manage day-to-day operations who also make long-term decisions

    See Title 13 Part 127 Subpart B of the Code of Federal Regulations for more information.