Fara Fasat

They may have moved on, but the certification and the compliance risk are still there.

Formerfed - that's the problem, or at least one of the problems. If you source telecommunications equipment from company xyz and it doesn't have Huawei, ZTE, etc in its name, then you have to search for that company in SAM, with no guarantee that it has been added to the excluded party list. In fact, doesn't an agency have to go through the suspension and debarment process to add a company to the excluded party list? What are the chances a newly-formed subsidiary of Huawei, created to avoid the prohibition, has been entered in SAM? We've beaten this to death, and we know that the government does not maintain a list. Apparently no one else does either.

Answer: they know of no entities identified by SecDef, nor any published list.

Update: Just attended a PCI webinar put on by Sheppard Mullin. They said there is no 889 list of subsidiaries and affiliates available, including from the government. Submitted a question about entities identified by the SecDef, and waiting for the answer.

For gosh sakes Carl, that list you keep posting is for a different NDAA and is a different requirement. It is not, repeat, NOT, a list of entities covered by section 889 of the 2019 NDAA. Piliero made the same mistake. Their article claimed it was an 889 list, but then they link to a list whose title clearly states: "Entities Identifed as Chinese Military Companies Operating in the United States in Accordance with Section 1260H of the William M. ("Mac"} Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116-283)." The title alone gives it away. As for the FCC list, it just names the 5 companies (Huawei, ZTE, et al). Unless it is buried somewhere else, I do not see a list of all the subsidiaries and affiliates of those companies. At this point, I think the only thing a company can do is go through its ERP system, identify all entities it has bought telecommunications equipment from, and then search for those companies in SAM. However I will add that I am not at all confident that all prohibited entities are entered in SAM. In addition, if the SecDef has designated (under FAR 4.2101) additional entities, is it that hard to make that list available on a DoD website, maybe DCMA or DLA?

For gosh sakes Carl, that list you keep posting is for a different NDAA and is a different requirement. It is not, repeat, NOT, a list of entities covered by section 889 of the 2019 NDAA. Piliero made the same mistake. Their article claimed it was an 889 list, but then they link to a list whose title clearly states: "Entities Identifed as Chinese Military Companies Operating in the United States in Accordance with Section 1260H of the William M. ("Mac"} Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116-283)." The title alone gives it away. As for the FCC list, it just names the 5 companies (Huawei, ZTE, et al). Unless it is buried somewhere else, I do not see a list of all the subsidiaries and affiliates of those companies. At this point, I think the only thing a company can do is go through its ERP system, identify all entities it has bought telecommunications equipment from, and then search for those companies in SAM. However I will add that I am not at all confident that all prohibited entities are entered in SAM. In addition, if the SecDef has designated (under FAR 4.2101) additional entities, is it that hard to make that list available on a DoD website, maybe DCMA or DLA?

I thought I found the answer, but now I'm not sure. FAR 4.2102(d)(1) says that the 5 entities and their known subsidiaries will be recorded in SAM. 4.2102(d)(2) says that entities identified by the SecDef will be recorded in SAM. Great, the lists should be in SAM. Not so fast. There don't appear to be any lists. Instead you have to either search for an excluded party, or you can download a list of all excluded parties. If you are looking for a list of subsidiaries of Huawei, ZTE, et al, good luck. You can't search for a name you don't know. If you download the entire list, it is almost 150,000 entries long. If you want only those subject to the telecom prohibition, again good luck. The only choices for the type of exclusion are "ineligible", "Prohibition/restriction", or "voluntary exclusion." Furthermore, I doubt the spreadsheet has all the subsidiaries. The last list I saw had 20-30 entries for Huawei, and the SAM spreadsheet only has 6 or 7. And who can tell whether it has the entities designated by the SecDef. If anyone knows where the lists are buried in SAM (as required by 4.2102(d)), let us know. Otherwise, back to square one.

Carl - you keep posting that. It is for a different NDAA. That list is in response to the 2021 NDAA, and is a list of Chinese military companies operating in the US. I'm looking for the companies prohibited by section 889 of the 2019 NDAA: A) the subsidiaries of the 5 named companies (Huawei, ZTE, etc.) and B ) a list of companies designated by the SecDef ("an entity that the Secretary of Defense ... reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country."). *sigh* yes and again it is not relevant. The FCC list does not A) list the subsidiaries of the 5 named companies (Huawei, ZTE, etc.) or B ) list the companies designated by the SecDef.

Definitely not my intent. However it does seem reasonable to learn the identities of the companies whose equipment you cannot sell to the government or use internally. I found a little more information about the second link that Carl provided. Besides not knowing who created the list, it actually is a different list from the 889 prohibition. The provided link is a list of Chinese Military companies operating in the US, as required by the 2021 NDAA. There may be some overlap, but it is not a list of the subsidiaries covered by the 2019 NDAA telecommunications prohibition. When the 889 prohibition first came out, the University of Minnesota and a couple law firms published lists. I'm wondering if they or anyone else maintain updated lists. I suppose it's too much to ask of the government itself to provide a list of the companies it has made subject to the prohibition.

Thanks Carl. however that first link merely repeats the names of the 5 primary companies and does not list the subsidiaries, so it doesn't help much. The second link looks more useful, but there is nothing on the document to identify it or where it came from. Was it created by DoD? If not, do you know what agency originated it? Is it published on a website so that we can access updates?

Most of us are painfully aware of the 2019 NDAA section 889 prohibition (implemented at FAR Subpart 4.21) against delivering telecommunications equipment to the government that is made by Huawei Technologies Company, ZTE Corporation, Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company, or their subsidiaries or affiliates, or using such equipment in a contractor's operations. Does anyone know if any government agency maintains an updated list of the subsidiaries and affiliates, of which there are hundreds? There have been news reports that those 5 companies are constantly creating subsidiaries to get around this and being on the denied parties list. In addition, the prohibition extends to companies that the "Secretary of Defense, ... reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of [China]." Does DoD publish such a list?

Joel, I really don't want to leave this hanging out there, unanswered. You have stated, pretty bluntly, that it was 'wrong' and 'dangerous' to state that there is no connection between the price you want and the data you submit, as Retreadfed asserted. You have said that the price must be 'based on' the data submitted. What does that mean? The references you cited all talk about the data that must be submitted, and say nothing about price. If we follow your logic to its conclusion, you seem to be saying that the price must be within a certain range of (i.e., 'based on') the costs. Are you suggesting there is a limit on profit? If a contractor's current, complete, and accurate data shows a cost of $10 to make a product, and the contractor wants to charge $20 (a 100% profit), what prohibits that? That price is 'based on' the costs, just as charging $12 would be. If the government doesn't like $20, start negotiating. It has the data, it's on an equal footing with the contractor, and the purpose of TINA has been met.

Joel, you're usually on the mark, but I disagree with posting a link to a defective data training module in response to Retreadfed's assertion that there is no connection between the data and the price. I agree with Retreadfed. As long as the data is complete and accurate, the government has the same information that the contractor has, and they are therefore on equal footing in negotiations. That is the purpose of TINA. If the total cost of production is $10 and the contractor says its price is $20, the government knows that the contractor wants $10 in profit. There's nothing defective about that. Start negotiating. Assuming that the data is accurate, there is no issue of defective data.

If you are looking to get email notices whenever a proposed or final rule comes out, try this: go to the federal register website at https://www.federalregister.gov/ create an account go to "advanced document search" at the top menu enter "acquisition" for the search term click the buttons for "rule" and proposed rule" in the field for "affecting CFR Part" enter 48 click on "search" You will now get results for several years. Ignore them (unless you are interested in a particular recent rule). Now go to the upper right of the page and click on "subscribe." Click on the "notify when published" button for email notifications. You should now receive an email notification when a proposed or final acquisition rule comes out. This has worked for me so far. I don't get extraneous federal register notices, and I believe I am getting all relevant acquisition-related rules. I'm comparing my results to other sources so I might have to tweak my search, but it seems to be giving me what I want.

Thanks. I think we have covered my question. You can't invoice the government for more than the costs you incur, and there are various ways of handling that when there is uncompensated overtime.