DoD Section 889 Telecommunications Ban Waiver Expiration

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Effective October 1, 2022, Department of Defense (“DoD”) contractors must comply with Part B of Section 889 of the FY 2019 National Defense Authorization Act (“NDAA”) ). The roughly two-year Part B waiver granted to the Director of National Intelligence expired on October 1. DoD contractors cannot request a DoD agency-level waiver because the DoD cannot grant a waiver under the law. Thus, as with other agencies, the DoD is prohibited from entering into, extending, or renewing contracts with contractors who use covered telecommunications or video surveillance equipment and services of certain Chinese companies in any part of their activities.

Compliance with Part A of Section 889 was straightforward. Part A prohibited contractors from selling covered technology to federal agencies. Comparatively, Part B compliance is much more complicated. Part B requires a Contractor to certify that it does not use “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 in within any system. The prohibition applies to all contracts, regardless of their dollar value. “Covered Telecommunications Equipment or Services” is defined as video surveillance equipment, services and/or products of Huawei Technologies Company, Hangzhou Hikvision Digital Technology Company, Hytera Communications Company, Dahua Technology Company, ZTE Corporation or any entity controlled by the Republic popular in China.

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