In latest edition of The Wright Toolbox:
In Case You Missed It – The Far Rules Ban the Use of Tiktok on Government Contracts
We have all heard the news swirling around the popular app TikTok and various bans that have been imposed by various jurisdictions, governments and agencies. The FAR was amended this past summer by an interim rule to implement the “No TikTok on Government Devices Act” passed by Congress as part of the Consolidated Appropriations Act of 2023 (the “Act”).
The new rule issued by the Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) took effect on June 2, 2023 and bans federal contractors from using or even installing TikTok on applicable information technology systems, unless an exception is granted. The rule applies to TikTok and any successor application or service developed or provided by ByteDance Limited or an entity owned by ByteDance Limited. Under the Act, the Office of Management and Budget (OMB) is required to issue rules for executive agencies regarding removal of TikTok from any equipment or interconnected system or subsystem of equipment used by an executive agency or a federal contractor under a government contract. In compliance, OMB issued its implementation guidance on February 27, 2023, in OMB Memorandum M–23–13. The FAR rule notes that the prohibition applies to devices regardless of whether the device is owned by the Government, the contractor, or the contractor’s employees. A personally-owned cell phone that is not used in the performance of the contract is not subject to the prohibition. The rule applies to contracts at or below the SAT and for the acquisition of commercial products and commercial services and COTS items.
Existing solicitations and IDIQ contracts were required to be modified by July 3, 2023. If other contracts come up for option or modification, the rule requires agencies to include the new FAR clause (52.204–27) implementing the TikTok ban. If contracts are not modified, OMB guidance directs executive agencies to cease use of contracts that contain requirements that may include use of TikTok in performance of the contract. All solicitations going forward must include the FAR clause banning TikTok.
Affected federal contractors were to start implementing the TikTok ban on their information technology devices and remove and disallow installations of TikTok on such systems. As the rule notes, contractors’ internal policies will need to be updated to include the prohibition on having or using a TikTok and implementation of the prohibition may also require employee communications or training on this requirement.
If you have any questions regarding this matter, please contact any member of our Government Contracts practice group.