Federal Acquisition Circular (FAC) 2023-04 was issued on 6/2/2023. This FAC published FAR Case 2023-010, Prohibition on a ByteDance Covered Application, as an interim rule effective 6/2/2023, to implement section 102 of Division R of the Consolidated Appropriations Act, 2023 (Pub. L. 117–328), the No TikTok on Government Devices Act.
What is ByteDance? TikTok is a software application owned and operated by ByteDance Limited, a privately held company headquartered in Beijing, China. The Consolidated Appropriations Act, 2023, enacted the No TikTok on Government Devices Act, which instructs the Director of OMB, in consultation with the Administrator of General Services, the Director of the Cybersecurity and Infrastructure Security Agency, the Director of National Intelligence, and the Secretary of Defense, to develop standards and guidelines for agencies requiring the removal of TikTok from Federal information technology.
Impact of this Interim Rule: The interim rule adds a new FAR Subpart 4.22, Prohibition on a ByteDance Covered Application, with a corresponding new contract clause at 52.204–27, Prohibition on a ByteDance Covered Application. The new FAR clause prohibits contractors from having or using the social networking service TikTok or any successor application or service developed or provided by ByteDance Limited or an entity owned by ByteDance Limited (“covered application”)--
on any information technology owned or managed by the Government, OR
on any information technology used or provided by the contractor under a contract, including equipment provided by the contractor's employees.
IMPORTANT NOTE: This prohibition applies to devices regardless of whether the device is owned by the Government, the contractor, or the contractor's employees (e.g., employee-owned devices that are used as part of an employer bring your own device (BYOD) program). A personally-owned cell phone that is not used in the performance of the contract is not subject to the prohibition.
See Office of Management and Budget (OMB) Memorandum M–23–13 dated February 27, 2023, “No TikTok on Government Devices” for additional details.
Other Applicability: This interim rule is applicable to simplified acquisitions and the purchase of commercial products and commercial services. (See FAR 2.101 for definitions.)
Impacts to Solicitations: The new clause will be added by amendment no later than July 3, 2023, to solicitations issued on or after June 2, 2023 and those issued before June 2, 2023, provided award of the resulting contract(s) occurs on or after the effective date.
Impacts to Existing Contracts: Existing contracts will be modified to add the clause either (1) by July 3, 2023, for Indefinite-delivery contracts, so as to apply to future orders, or (2) in a sufficient amount of time before exercising the option of modifying an existing contract or task or delivery order to extend the period of performance such that contractors have adequate time to comply.
Public Comment: Comments are due by August 1, 2023 to be considered in the formation of the final rule. Comments must be submitted at https//www.regulations.gov. Search for FAR Case 2023-010 and select the link "Comment Now" that corresponds to the case and follow the instructions.
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