Federal contractors, be sure to ask your kids or a young person what TikTok is (if you don’t already know), because those providing services to the federal government now have to take steps to ban it from employee’s devices in certain situations. A recent FAR rule has now implemented Congress’s ban on use of TikTok on government devices.
The Consolidated Appropriations Act, 2023, enacted the No TikTok on Government Devices Act (the Act) and OMB provided additional implementing guidance. “The rule revises the FAR to implement the prohibition on having or using the social networking service TikTok or any successor application or service developed or provided by ByteDance Limited or an entity owned by ByteDance Limited.” TikTok will be banned on:
- Information technology owned or managed by the Government,
- Any information technology used or provided by the contractor under a contract,
- This includes equipment provided by contractor employees, and “applies to devices regardless of whether the device is owned by the Government, the contractor, or the contractor’s employees ( “e.g., employee-owned devices that are used as part of an employer bring your own device (BYOD) program).” However, a “personally-owned cell phone that is not used in the performance of the contract is not subject to the prohibition.”
Timing
Contracting officers must include new clause FAR 52.204–27, Prohibition on a ByteDance Covered Application on the following timeframe:
- In new solicitations issued on or after June 2, 2023
- In solicitations issued before June 2, 2023, if award of the contract occurs after June 2, 2023, and the clause should be included by amendment by July 3, 2023.
- Contracting officers must modify existing indefinite-delivery contracts to include the FAR clause by July 3, 2023, for future orders.
- If exercising an option or modifying a contract or task or delivery order to extend the period of performance, contracting officers must include the clause.
Implementation
The clause applies to contracts at or below the Simplified Acquisition Threshold and can even apply to purchases below the micro-purchase threshold if the contract may use TikTok such as a social media-related contract. It also applies to contracts for the acquisition of commercial products and commercial services.
Interestingly, the government forecasts that the rule will not be difficult for contractors to implement, as it is not very complicated compared to some bans such as the “prohibition on contracting for certain telecommunications and video surveillance services or equipment, which requires reviewing a contractor’s supply chain to uncover any prohibited equipment or services.” For this rule, there is no required supply chain review nor is there any reporting requirement.
Rather, the rule requires contractors to update internal policies and IT rules to “include the prohibition on having or using a covered application, and that implementation of the prohibition may also require employee communications or training on this new requirement. It will be particularly important for contractors to clearly explain to their employees when a covered application is prohibited on a personal device used in performance of a Federal contract.”
IT Equipment is defined broadly, as equipment “used by a contractor under a contract with the executive agency” that requires use of the equipment “to a significant extent in the performance of a service or the furnishing of a product.” But the ban does not include “equipment acquired by a Federal contractor incidental to a Federal contract.”
The ban applies “on any information technology used or provided by the contractor under a contract, including equipment provided by the contractor’s employees, unless an exception is granted in accordance with OMB Memorandum M–23–13.” The clause must be inserted in subcontracts as well.
The OMB memo has a few more details on the exceptions. These fall into the categories of national security, law enforcement, and security research. These exceptions must be approved by agency heads.
So, contractors must now take steps to bar TikTok from devices that will be used in federal contract performance by updating procedures and policies.
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