On June 2, the Federal Acquisition Regulation Council published an interim rule prohibiting federal contractors from using TikTok on government devices or devices provided by a contractor under a contract. The interim rule amends the FAR to ban TikTok and other ByteDance apps on equipment used in the performance of a federal contract. While the FAR Council has invited comments from the public up until Aug. 1, the rule is being implemented with immediate effect. This interim rule adds a new FAR clause at FAR § 52.204-27. The new clause applies to all prime contracts, including those below the simplified acquisition threshold, and contracts for commercial products and services. In addition, prime contractors will be required to flow down the clause to their subcontractors at any tier. Contracting officers must include the new FAR clause in all solicitations, awards, modifications, the exercise of options, or extensions issued after June 2. In addition, contracting officers must amend solicitations issued before but awarded after June 2, by July 3. Existing contracts shall only be modified to apply to future orders or when exercising options.
The interim rule prohibits federal contractors from having or using TikTok and other ByteDance apps on government-owned or managed devices as well as contractor and employee devices in employer bring-you-own-device programs. Specifically, the interim rule states, “The Contractor is prohibited from having or using a covered application on any information technology owned or managed by the Government, or on any information technology used or provided by the Contractor under this contract, including equipment provided by the Contractor’s employees.” FAR 52.204-27 adopts the statutory definition of “information technology” in 40 U.S.C. § 11101(6) but applies more broadly and prohibits ByteDance app use on information technology to any extent on a government contract. This broad definition is likely to create the most confusion among the contracting community and generate the most comments. Although personally owned cell phones “not used in the performance of a contract” are excluded from coverage under the interim rule, unless and until further clarification is provided by the FAR Council, we expect many contractors and subcontractors will be considering implementing policies to place boundaries on the use of personal phones in the workplace or for employees who are assigned to federal contracts.
The rule implements the Consolidated Appropriations Act of 2023, in which Congress banned Federal employees from using TikTok on government-owned devices. This December 2022 legislation cited security risks and gave OMB 60 days to issue guidance regarding removing the Chinese-owned app.
Clark Hill’s Government Contracts and Regulation practice and Clark Hill Public Strategies will continue to monitor this interim rule and can assist government contractors who would like to add their comments to the FAR Council during the comment period. We are also available to assist contractors and subcontractors in creating policies and procedures to comply with the interim rule.