section 889 telecommunications prohibition

[ji20874]

Joel,

I'm trying to understand your position, so I took the liberty of marking up FAR 4.21 in the way it seems to me that you think it should have been written given that you oppose reasonable contracting officer reliance on offeror certifications. 

Am I getting it right?

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FAR 4.2103 Procedures.

      (a)(1)(i) If the offeror selects "does not" in paragraphs (c)(1) and/or (c)(2) of the provision at 52.204-26 or in paragraphs (v)(2)(i) and/or (v)(2)(ii) of the provision at 52.212-3, the contracting officer may [shall not] rely on the "does not" representation(s), unless the contracting officer has reason to question the representation. If the contracting officer has a reason to question the representation, the contracting officer shall follow agency procedures.

      * * * * *

      (a)(2)(i) If the offeror selects "will not" in paragraph (d)(1) of the provision at 52.204-24 or "does not" in paragraph (d)(2) of the provision at 52.204-24, the contracting officer may [shall not] rely on the representations, unless the contracting officer has reason to question the representations. If the contracting officer has a reason to question the representations, the contracting officer shall follow agency procedures.

            (ii) If [Regardless of whether] an offeror selects "will" [or “will not”] in paragraph (d)(1) of the provision at 52.204-24, the offeror must provide the information required by paragraph (e)(1) of the provision at 52.204-24, and the contracting officer shall follow agency procedures.

            (iii) If [Regardless of whether] an offeror selects "does" [or “does not”] in paragraph (d)(2) of the provision at 52.204-24, the offeror must complete the disclosure at paragraph (e)(2) of the provision at 52.204-24, and the contracting officer shall follow agency procedures.

      * * * * *

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[Fara Fasat]

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?

[Fara Fasat]

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.

[joel hoffman]

ji, FAR 4.2103 says that the contracting officer “may rely” on the representations. It doesn’t say “shall rely”.

“If the contracting officer has a reason to question the representation, the contracting officer shall follow agency procedures.”

I don’t know what the agency procedures are. But I wouldn’t rely on a simple all encompassing certification unless  there were some substantiation concerning the source company.

I described my possible procedure. It doesn’t involve any more research by the industry than what the certification requires. If a KO wants to spot check or totally check behind the offeror, they can search SAM for the identified source themselves (or have it searched by someone).

There is no need to require an offeror to provide all the information in the paragraph at 52.204-24 if they reviewed the SAM list and the entity wasn't listed or they otherwise determined that the source of the equipment or services is not an affiliate of the dirty five..

EDIT: Well it seems that Fara Fasat has discovered that SAM doesn’t list affiliates of the excluded dirty five after all. In fact there is apparently no 889 list of affiliates.

What a joke this whole thing is if a proposing firm can’t even find affiliates after being required to search SAM for affiliates of the “dirty five”!!

Bureaucracy!! 

[Fara Fasat]

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

[joel hoffman]

20 minutes ago, Fara Fasat said:

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

Yet all prospective providers of covered telecommunications equipment or services must certify whether or not any sources are affiliates of one or more of the dirty five excluded sources?

Apparently neither the government nor the industry has access to a list of excluded affiliates of the dirty five!

This is even more reason why a contracting officer may not (should not) simply rely upon a simple “no” certification.

[formerfed]

One thing to keep in mind the equipment is highly sophisticated stuff.  I imagine any offeror selling it to the government is very knowledgeable of the sources.  

[joel hoffman]

1 minute ago, formerfed said:

One thing to keep in mind the equipment is highly sophisticated stuff.  I imagine any offeror selling it to the government is very knowledgeable of the sources.  

Probably so.

So it shouldn’t be a problem for them to identify the sources of the equipment and services they are certifying about. .

[formerfed]

Right.  Besides any experienced contracting officer and PM should ask for a comprehensive technical proposal for items like networks, components and services.  The government can also check for 889 compliance.  Of course that’s subject to the limitations Fara noted.

[Fara Fasat]

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. 

 

[ji20874]

2 hours ago, joel hoffman said:

...FAR 4.2103 says that the contracting officer “may rely” on the representations...

Your statement is incomplete and, it appears to me, is intended to mislead WIFCON readers.  FAR 4.2103 says the contracting officer may rely on the representations unless the contracting officer has reason to question the representation -- you are essentially saying that the contracting officer must not rely on the "will not" and "does not" representations.  I understand that you take this matter seriously, but you are over-reaching. 

The correct principle is that a contracting officer may rely on the representations unless the contracting officer has reason to question the representation.

[formerfed]

1 hour ago, Fara Fasat said:

We've beaten this to death, and we know that the government does not maintain a list. Apparently no one else does either. 

 

I hate to sound negative but this legislation was passed over four years ago.  Then it was probably a year too late.  Don’t you think Chinese e-spy’s have moved on by now?  It seems like monitoring US security traffic has a different mode by now

[Fara Fasat]

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

[joel hoffman]

4 hours ago, formerfed said:

Right.  Besides any experienced contracting officer and PM should ask for a comprehensive technical proposal for items like networks, components and services.  The government can also check for 889 compliance.  Of course that’s subject to the limitations Fara noted.

Formerfed, your initial statement is so obvious, I overlooked it. The government can certainly ask for relevant information in the technical proposal.