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I'm posting this under "Proposed Law & Regulation" forum, but it really relates to an interim rule (FAR Case 2018-017 under FAC 2019-05) that has been in place since 13 Aug.  The interim rule adds FAR Subpart 4.21, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment.

I'm interested in the relationship between the representation and the clause.  The representation (FAR 52.204-24) is broad, making no mention of whether or not the equipment, system, or services use covered telecommunications or services as a substantial or essential component of any system, or as critical technology as part of any system.  This highlighted language, though, seems vital to what the clause prohibits the Contractor from providing.  See paragraph (b) of the clause at FAR 52.204-25.  In other words, an offeror would have to represent that it WILL provide covered telecommunication equipment or services, and then provide additional information about that IAW with paragraph (d) of the provision, even when use of that equipment or services may (at least in the view of the offeror) be entirely consistent with the clause.

My theory is that the reason the new FAR Subpart 4.21 prescribes both a clause and a representation, or more to the point, why the representation is broader than the clause, is because the FAR drafters wanted to force the offeror and the Government to come to a meeting of the minds, prior to the award of the contract, that any covered telecommunications or services are not, in fact, "a substantial or essential component of any system, or as critical technology as part of any system."  Perhaps "meeting of the minds" is the wrong phrase, but hopefully you get the idea.

I have phrased the above in terms of the intent of the drafters, but really what am interested in is whether the rules effectively require the offeror to disclose to the Government, prior to award, whether it is relying upon the highlighted language in concluding that its proposal is compliant with the clause.

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On 10/18/2019 at 8:47 AM, Jacques said:

...really what am interested in is whether the rules effectively require the offeror to disclose to the Government, prior to award, whether it is relying upon the highlighted language in concluding that its proposal is compliant with the clause.

I have not read the regulatory history. I may not be understanding your post the way you intended. Here is my take on a response based on the provision and clause.

 The -25 clause prohibition includes your highlighted bold language and provides there can be an exception or waiver to the prohibition. I see no need for a redundant representation provision requiring contractor agreement that it shall comply with the clause prohibitions.

You have asked “whether the rules effectively require the offeror to disclose to the Government prior to award, whether it is relying upon (your) highlighted bold language in concluding that its proposal is compliant with the clause.” I did not find any language in -24 or -25 that requires any contractor disclosure about what it is relying on or requires that a contractor shall disclose facts or conclusions regarding compliance with the clause.  

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I’m not sure if I’m completely understand your questions but to me, it’s pretty clear.  Part of the definition is this:

Quote

Substantial or essential component means any component necessary for the proper function or performance of a piece of equipment, system, or service.

So when an offeror makes the representation,  they must indicate if the telecommunications component is necessary for proper functioning.  I don’t see a discussion after proposal submission about where ancomponent does or does not.  The offeror must indicate yes or no and that’s it.  

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Let me see if I can state it a different way.

For purposes of this discussion, for a proposed approach to contract performance to be inconsistent with the clause, two elements must be met.  "The Contractor is prohibited from providing to the Government any equipment, system, or service (1) that uses covered telecommunications equipment or services (2) as a substantial or essential component of any system, or as critical technology as part of any system."  (See paragraph (b) of the clause.)  Say an offeror acknowledges the first element it met, that it will use "covered telecommunications equipment or services" in the performance of the contract.  However, the offeror believes the second element is not met, so the offeror believes its proposal is eligible for award, at least so far as the clause at FAR 52.204-25 is concerned.

I believe this offeror under these facts must answer the representation at paragraph (c) of the provision at FAR 52.204-24 that it WILL provide covered telecommunications equipment or services, and then provide the additional information required at paragraph (d) of the provision.  What, if anything, am I missing?

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3 minutes ago, formerfed said:

In that instance, I say the contractor doesn’t meet the first element. It doesn’t fit the definition of covered.

How does it not meet the definition of "covered telecommunications equipment or services"?  "Covered telecommunications equipment of services" is defined in paragraph (a) of the clause.  Nowhere in that definition does it say anything about the equipment or services needing to be a "substantial or essential component of any system, or a critical technology as part of any system."

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Let me see if I get it......as I agree the representation is confusing as it only addresses "covered" and does not use the wording substantial, essential, critical.  Likewise "covered" is absent the substantial, essential, critical.

My read of your thoughts is that you believe the "will" or "will not" applies to the system or technology that government has or is getting and not to what the contractor is providing - equipment or service. 

I do not read the representation in that manner.   I read the representation that the contractor will or will not provide covered equipment or services.  The additional wording in -24 and -25 about the prohibition is just trying to tell a contractor that the equipment and services for anything produced by certain named companies or other companies that are owned or controlled by, or otherwise connected to China is prohibited from use in about 99% of anything the government needs especially when applying   “Substantial or essential component” as prohibited except gives the out for "A service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or 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."

The representation and clause could in fact be reworded to better capture the intent of the prohibition.   How would you do it?

 

           

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26 minutes ago, C Culham said:

My read of your thoughts is that you believe the "will" or "will not" applies to the system or technology that government has or is getting and not to what the contractor is providing - equipment or service.            

My concern is less whether aspects of the prohibition in paragraph (b) of the clause are broader than the representation.  The clause at paragraph (b) prohibits the Contractor from providing to the Government any equipment, system, or service the USES covered telecommunications equipment or services.  The representation at paragraph (c) requires the Offeror answer whether or not it will PROVIDE "covered telecommunications equipment or services to the Government."  My question is NOT whether the contractor could truthfully answer the representation that it WILL NOT but then end up violating the clause.

26 minutes ago, C Culham said:

The representation and clause could in fact be reworded to better capture the intent of the prohibition.           

Every day we are asked to figure out intent from plain language.  There is nothing new about that.  I've been trying to get a sanity check on whether the point (or a point) of the representation is to give the Government some insight into whether or not an offeror is relying on the "as a substantial or essential component of any system, or as critical technology as part of any system" in the offeror's implicit claim, by virtue of submitting a proposal, that its proposal is compliant.  It seems to me it is the point (or at least a point) of having the representation, but I am interested in other folks' experience.

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Never mind.  I found my answer in the FAC:  "The additional information provided through this representation will assist the Government in appropriately assessing the presence of any covered telecommunications equipment or services that may be present in an offer,  for example, to determine if the items in question will be used as a substantial or essential component, or to determine if a waiver request may be appropriate."

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  • 6 months later...

Coming late to this but I had another question on the telecommunications prohibition and was searching for earlier discussions.

Anyhow, I think this discussion is missing the certification at 52.204-26 and the interplay between it and 204-24. 204-26 is the broader certification and it is in SAM. It asks if the contractor provides the prohibited equipment to the government on any contract. Then in a specific proposal, if the contractor answered 'no' to 204-26, it does not have to fill out 204-24. If it answered 'yes', then it fills out 204-24 for that proposal.

In 204-24, if it answers 'no' for that  contract, then the discussion is over. If it answers 'yes' it then has to provide the information at (e) as part of its proposal so the CO can evaluate it.

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