On June 2, 2023, the Federal Acquisition Regulation (FAR) Council published an interim rule prohibiting the presence and use of the social media app TikTok and any successor application or service developed or owned by ByteDance Limited. This ban applies to federal contractors and subcontractors “on any information technology owned or managed by the Government, or any information technology used or provided by the Contractor under th[e] contract, including equipment provided by the Contractor’s employees.” The ban comes from the “No TikTok on Government Devices Act,” a part of the Consolidated Appropriations Act, 2023 (Pub.L. 117-328).
The rule requires contracting officers to insert the FAR 52.204-27 clause into all new solicitations or when exercising an option, modifying an existing task, or changing the delivery order. If contracts are not modified, the Office of Management and Budget (OMB) directs executive agencies to “[c]ease use of contracts that contain requirements that may include use of a covered application [i.e., TikTok] in performance of the contract.”
Photo credit: Al Jazeera
What’s the Reason for the Ban?
The ban is considered “a national security measure to protect Government information and information and communication technology systems.” It aims to limit the Chinese government’s access to federal contractor supply chains.
The prohibition is “not expected to have a significant economic impact on businesses” because it does not require a contractor to review its supply chain. There is also no reporting requirement. The FAR council expects that “contractors already have technology in place to block access to prohibited applications.”
How To Be Compliant with the TikTok Ban
OMB offers guidance to executive agencies for federal contractors. To comply with the FAR TikTok clause:
- Identify “the use or presence of a covered application on information technology”
- Remove and disallow “installations of a covered application on IT owned or operated by agencies, except in cases of approved exceptions”
- Prohibit “internet traffic from IT owned by agencies to a covered application”
- Update contractors’ internal policies to include the prohibition
- Ensure all new solicitations include the FAR 52.204-27 clause, or when exercising an option, modifying an existing task, or changing the delivery order
- Ensure a”ny new contracts issued do not contain requirements that may include the use of a covered application in the performance of the contract”
- Implement the prohibition through employee communications and training
Some federal contractors may find workers with the app on a company device or personal device used to perform a government contract, such as with work-from-home employees. That’s why it’s essential to provide training and communication to employees about the new ruling.
Questions about how the new TikTok ban could influence your organization?
Contact a Hilger Hammond attorney for guidance. We’d be happy to talk through your unique situation.
