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Reference Interim Rule for FAR Case 2019-009 published July 14, 2020 in the Federal Register - https://www.govinfo.gov/content/pkg/FR-2020-07-14/pdf/2020-15293.pdf Ultimately, I would like to know your opinion whether a bilateral contract modification should be pursued to update FAR 52.204-25 to the newest AUG 2020 version. The clause is currently included in my IDIQ commercial services contract. The contract base and all options is anticipated to be 60 months in length, estimated total $12M. The contractor completed their representations in SAM for provisions 52.212-3(v)(2) and 52.204-26(c) and stated "does not" provide covered telecommunications equipment or services for both provisions. Provision FAR 52.204-24 is also being updated AUG 2020. Do I need their representations for FAR 52.204-24(d)(2)? Potentially prior to exercising an option??? The Interim Rule states contracting officers shall modify existing contracts prior to placing future orders. On page 11 of the Federal Register publication it states, "the objective of the rule is to provide an information collection mechanism that relies on an offer-by-offer representation that is required to enable agencies to determine and ensure that they are complying with section 889(a)(1)(B)." FAR 52.204-25 AUG 2019 does not address section 889(a)(1)(B). FAR 52.204-25 AUG 2020 added a second paragraph under (b), the second paragraph pertains to section 889(a)(1)(B). If I do not modify my contract to update FAR 52.204-25, will I potentially be in violation of section 889(a)(1)(B)? I can't recall ever modifying a contract just to include the most current version of a clause. Do you think a modification to update FAR 52.204-25 to AUG 2020 is appropriate? If so, would you expect this to be a no-cost mod? Thanks in advance for participating in this discussion!
As everyone knows, section 889 of the 2019 NDAA prohibited the use of telecommunications equipment made by Huawei, ZTE, and others. It was implemented in the FAR in August and December 2019 with two certifications and a clause. My question is this: what is 'telecommunications equipment'? It was not defined in the NDAA, nor in the certifications or the clause. There is no definition anywhere else in the FAR. The term is used in Part 39, but it is not defined. The closest the FAR comes to a definition is in the list of exceptions, which states that 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" is excepted. I guess we can infer that if the equipment does do that, it is the covered equipment. Do we have anything better than that?
Sometimes the Government seeks the best overall value, and at times simply lowest cost. But even when low price is determinative, the bidder must still meet minimum technical qualifications. In a recent case, Level 3 Communications lost a major contract with the Dept. of Defense to Verizon, whose bid exceeded theirs by nearly $40 million. Level 3 was disqualified for what it thought were trivial reasons. When Level 3 protested, it got no relief from GAO, but the Court of Federal Claims came to their rescue. More at Petrillo & Powell's Patterns of Procurement.